Lowe’s just won a discrimination case filed by one of its employees. It wasn’t an accident. It wasn’t magic. It wasn’t luck. It wasn’t “just” because the employee didn’t have good enough facts. It’s possible to win — or even avoid–an employment discrimination case. Can you? Yes, if you do your homework. Let’s take a look at what happened with Lowe’s. In particular, I will be looking at what Lowe’s did right.
The case is Walls v. Lowe’s Home Centers, LLC, No. 18-12055 (11th Cir. Oct. 16, 2019). In a nutshell, here’s what went down:
Robert Walls was the subject of multiple investigations by his employer, as a result of complaints by his co-workers. He also had been transferred. Lowe’s either found the complaints to be unfounded, or gave him a written notice, with no further discipline. The investigations were approximately one to two years apart. The court also noted evidence that Mr. Walls wanted to be transferred to a different store, that his skills were a fit for the new location and, he received a pay increase. Mr. Walls, however didn’t see it that way. He sued Lowe’s alleging discrimination and harassment under the ADEA, the ADA, the FMLA and Title VII, in addition to Florida anti-discrimination laws. He also claimed that the investigations and transfer constituted such pervasive harassment as to create a hostile work environment. The District Court dismissed his claims. The 11th Circuit affirmed the dismissal. Here’s why:
The court found that the events he claimed to be severe and pervasive harassment sufficient to create a hostile work environment in fact were “legitimate work place investigations that a reasonable jury could not have found to be sufficiently severe, frequent, threatening and humiliating to create an abusive work environment.” Lowe’s either determined the complaints were unfounded, or when it found misconduct, it issued him a written notice without further discipline. Since the investigations happened once every one to two years, the court found that the investigations could not have been “frequent” harassment, as Walls alleged. Walls also alleged that his transfers constituted age and disability discrimination, and that the legitimate, non-discriminatory reasons Lowe’s offered were pretextual. The Court wasn’t having it, though. First, Lowe’s believed that Walls wanted to be transferred. Second, the court Lowe’s believed that Walls’ strength in sales would be beneficial to a smaller store that required further tasks were supported by the record. You can find the full opinion here.
OK, so now let’s look at how Lowe’s managed to beat multiple discrimination claims. In other words, what did Lowe’s get right? If I had to boil it down to one word, I would say it’s Documentation. You’ve probably heard me (not to mention my colleagues) go on about documentation before. There’s a reason: It works. At least good, thorough documentation does. Lowe’s investigated. Lowe’s documented its investigations, including the reasons for starting them, their conclusions and the reasons for their conclusions. Lowe’s documented its decisions and the reasons for them. The court specifically noted that Lowe’s documented it’s reasons for Walls’ transfer. Regarding the transfer issue, Lowe’s likely had documentation of Walls’ performance as well. The record showed he was strong in sales, and, the implication is that he was not as strong in managerial skills. Documentation of those issues therefore supported its legitimate, non-discriminatory reasons for transferring him.
Yes, each case turns on its facts. Yes, when a case has good facts for an employer it’s more likely that the outcome will be good for an employer — if an employer can actually produce proof of those facts. That means you have to document. That means that when employees express concerns about other employees or about wage and hour, employee leave or accommodation issues to name a few, you need to document that. You need to respond promptly, and document your responses–and the reasons. That means that you need to document your employees’ performance. As you can see from this case, you never know when they might end up helping you beat a discrimination claim. Your documentation may seem like an annoyance now, but if an employee files an administrative complaint or lawsuit, outsiders will be looking for, and looking at your documentation. Those outsiders (think administrative agency employees, jurors and/or judges as well as attorneys) are not going to connect the dots on their own. Your documentation has to do that for them, so they can reach the conclusion you want. Enough said.
Watch my first of two television interviews on Stop My Crisis with Vivian Gaspar.
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