White nurse’s firing wasn’t racially motivated, 10th Cir. says

Dive Brief:

• A White nurse couldn’t show she was fired because of a manager’s alleged racial favoritism toward Black and African American employees, the 10th U.S. Circuit Court of Appeals held Nov. 30 (Painter v. Midwest Health, Inc., No. 21-3195 (10th Cir. Nov. 30, 2022)).
• The nurse worked at an assisted living facility in Kansas. Before she was terminated, a resident’s son accused her of not checking the resident’s vital signs, and the two allegedly got into an argument, according to court documents. Following an investigation, the facility fired the nurse for neglecting her duties and acting unprofessionally, and she sued it for “reverse” race discrimination. She alleged that the Black nursing director showed favoritism toward Black, African American and African employees by disciplining her but not them for the same misconduct and by granting their time-off requests but not hers.
• The 10th Circuit upheld pretrial judgment for the facility. The nurse made “unsupported allegations that the [nursing director] exhibited favoritism … [y]et none of these things are associated with [her] termination, which is the only employment action she challenges,” it said. Further, the facility offered a legitimate reason for firing her, and she failed to show it was a pretext for discrimination, the court added.

Dive Insight:

Title VII prohibits discrimination on the basis of race or color in any aspect of employment, according to the U.S. Equal Employment Opportunity Commission. Everyone is protected, including “Whites, Blacks, Asians, Latinos, Arabs, American Indians, Alaska Natives, Native Hawaiians, Pacific Islanders, persons of more than one race, and all other persons, whatever their race, color or ethnicity,” an EEOC FAQ explains.

A White employee who believes they’ve been treated unfavorably because of their race may file what is often called a “reverse” discrimination claim. As the 10th Circuit explained, these claims are subject to a different standard than other race discrimination claims. Under this standard, plaintiffs suing for reverse discrimination must allege more than that they were “qualified and that someone with different characteristics was the beneficiary of the challenged action,” the 10th Circuit said.

In such cases, in lieu of showing they belong to a protected class, plaintiffs must establish that the defendant is “one of those unusual employers who discriminate against the majority,” the court explained. The nurse proceeded under an alternate standard — that “but for” her status as a nonminority, she would not have been fired. She failed to meet this burden, the court held.

Reverse discrimination claims arise under various circumstances, but perceptions of favoritism are a common trigger. For example, a few years ago, a White firefighter sued for reverse discrimination based on his belief that his captain, who was Black, denied him allegedly higher paying assignments out of racial favoritism toward his Black co-workers.

In a ruling that offers important tips for employers, the 7th Circuit rejected the claim. In particular, there was no evidence the captain “ever mentioned race or disparaged White people,” or had a history of favoritism toward non-Whites, the court said. Besides that, the captain provided a reasonable, non-discriminatory explanation for his actions.

By contrast, as a 2021 case shows, employers risk big losses if they can’t provide documentation to back up actions they say are legitimate and justified. Last year, a federal jury awarded $10 million to a White former executive after concluding that race and sex were motivating factors in his termination. He alleged that despite having a good record, he was fired without warning and replaced by two women, one Black and one White.

A federal district court recently slashed the award to $300,000 to conform to Title VII’s cap on damages. But it upheld the verdict and ordered the executive to be paid back pay and $1.3 million in front pay. The court explained that the employer failed to document the reasons it gave for terminating him, and these reasons were contradicted by other evidence.