Lessons From the Claims: Race Discrimination Cases

Race discrimination claims remain a prevalent cause of action against K-12 schools, colleges, and universities. Review these lessons gleaned from United Educators’ claims so your institution may avoid race discrimination allegations altogether or handle matters properly if allegations arise.

Set Expectations for New Roles and New Hires

Be deliberate about distilling your goals and requirements for each hire. Sometimes parameters of new roles aren’t fully delineated, leading to hiring candidates who don’t fit your institution’s needs or candidates who have different expectations than the role’s goals.

• Update position descriptions before each new hire to evaluate and clearly define the role’s needs, requirements, and expectations.
• When deciding on promotions, ensure the person has the necessary leadership and management skills for the role or that training is in place to develop missing skills.
• When creating a new position, carefully assess the role’s responsibilities and authority. Be clear about reporting structure and position expectations and clearly convey this to applicants. A new role that is too vague often results in dissatisfaction from the employee and institution.
• When hiring an employee, confirm they have the experience, knowledge, and qualifications needed to succeed. If they don’t, consider what training, guidance, or assistance your institution will provide to help them succeed.
• If the new position’s structure isn’t working, document the reasons why and include the employee in developing a more effective structure.

From the claims: A retired Navy attorney with substantial military experience struggled in his role. People complained about his military communication style and his failure to adapt to the collaborative working style of higher education. Aside from normal onboarding, he didn’t receive training to help him with his interpersonal issues. He brought a claim when he was dismissed from his role.

Focus on Good Documentation

Proper documentation is often overlooked in employment decisions. Among its many purposes:

• Good documentation habits force actions and analysis to be put into writing, which is when weaknesses of decisions often arise.
• When employment decisions are grounded in stereotypes or bias (either conscious or unconscious), it’s often not evident at first glance. Good documentation makes patterns or problems easier to spot.
• When claimants make race discrimination complaints, consider whether there have been comparable situations with other employees, to see whether your institution is acting consistently. Relying on memory isn’t sufficient; reviewing past documentation is an important part of a proper investigation.
• In discrimination cases, lack of documentation is often a red flag that prompts questions about the veracity and sincerity of employer decisions. When reasons for actions aren’t memorialized, there is concern that the motive was discriminatory; this may be difficult to counter.

From the claims: After a school sought to discipline an employee without documentation of performance issues, a claim arose. In fact, a recent salary increase undermined the argument that there had been purported performance problems.

Consider Suitability of Decision-Maker(s)

In many claims, only one decision-maker, with no additional review, makes the alleged discriminatory employment action. Other times, an internal race discrimination complaint allegedly isn’t handled correctly by the person with authority.

To avoid these issues:

• Use multiple and diverse decision-makers when possible. Unconscious bias can be hard to identify, so even the most self-aware people should seek to have others involved in the process. Decision-makers don’t need to share claimants’ backgrounds or experience, but decision-makers should be able to see things from employees’ viewpoints.
• Use objective decision-makers. Consider that direct supervisors may be too close to the employment relationships or actions in question, so seeking input from objective outsiders can be valuable.
• If there is an internal grievance alleging race discrimination, consider retaining an outside independent investigator, ideally with a diverse background, to determine the facts and make a recommendation on the complaint’s merit.

From the claims: The plaintiff was demoted after employee complaints. However, the decision-maker didn’t recognize the employee complaints were rooted in stereotypes and not supported by evidence. The decision-maker didn’t seek other perspectives.

Choose Defense Counsel Carefully

Institutions are often inclined to hire lawyers with whom they have a longstanding relationship. This can present challenges, including when:

• Defense counsel hired also aided the school during the decision-making process under dispute. When an action involved their legal advice, it is difficult for counsel to be objective about that employment decision.
• Defense counsel has relationships with the institution’s staff. They can have an unconscious bias toward people and their actions because they know and trust them. This presents challenges when assessing the case’s weaknesses.
• It is important for institutions to have a variety of diverse counsel to partner with for advice and cases. Often the right defense counsel will have a personal understanding of the alleged discrimination, and that lived experience may help in their investigation and defense.

From the claims: In a controversial employee termination, a school received guidance from its preferred outside attorney and then pushed to have that lawyer lead the defense of the subsequent lawsuit. However, a strong defense required an objective assessment of the actions (and inactions) leading to the termination, so new counsel had to be brought in to defend the school.

Be Proactive About Training and Discipline

Both comprehensive training and proper discipline (along with documentation of both), can help avoid discrimination allegations.

• Offer trainings more than once and cover a variety of topics — not just discrimination legal prohibitions, but also unconscious bias and microaggressions. Provide concrete, real-life examples. Understand one training isn’t enough to eradicate unconscious bias and that regular refreshers are important.
• Hold employees accountable for racist or discriminatory decisions, even if that wasn’t the intent. Take disciplinary action or increase education as the situation requires.
• Teach staff to be alert to stereotypical complaints like “loud” or “angry” so they can see when bias may be factoring into decisions.
• Be aware of how current events play into the claimant’s view of their experience.

From the claims: During a claim’s defense, counsel described the plaintiff as unprofessional and poor at communication, aligning with negative stereotypes of Black women despite lacking evidence in the record. The plaintiff's job was the only one affected by the department reorganization.

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