Manager Who Promotes, Then Fires, Minority Person May Be Guilty of Bias

For years, the courts have reasoned that a manager who hires or promotes a minority candidate could not be guilty of bias if he or she later fired the person. Under the “same actor” theory, it was presumed that if a manager hired a minority, he or she was not biased. Thus if the same manager later fired the minority, it was presumed that the firing was not based on prejudice.

A new California case has rejected this theory, which also has been rejected by courts in other states. In Husman v. Toyota Motor Credit Corporation, a director promoted Husman, an openly gay man, to an executive-level management position in the company’s diversity program. The director later made comments Husman perceived as anti-gay. The director observed that Husman made “a very clear statement” about his sexual orientation, stated he should cut his hair, and ridiculed him for wearing a scarf as an accessory when it was not cold outside.

The court held that these comments indicated anti-gay bias, and when the director later fired Husman, it could have been discriminatory.

What this means to you: You may have a great record of hiring and promoting minorities, but that doesn’t mean you get a pass on comments that could be seen as offensive. The occasional comment, even in jest, might not be harassment, but still can be used as evidence of discrimination if the person is fired, demoted, or denied a promotion or pay increase.

Posted 07-18-2017

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.


About the Author:

Rita M. Risser Chai is the founder of Fair Measures. An attorney in California for 20 years and now an attorney in Hawaii, she authored the Prentice Hall book, Stay Out of Court! The Manager’s Guide to Preventing Employee Lawsuits. She developed most of the curriculum used by Fair Measures, created the firm’s first website praised in HR Magazine, and wrote numerous articles on employment law including one on best practice harassment prevention training published in the magazine of the American Society for Training and Development (now ATD). She taught Law and Human Resources at the University of California, Santa Cruz, for eight years, and has presented four times at the annual conventions of the Hawaii Society of Human Resource Management.