Retailer Prevails on Loss Prevention Manager’s Race Discrimination Claims

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A loss prevention manager for JCPenney failed to show that he was denied promotions because of his race, the 11th U.S. Circuit Court of Appeals has ruled (Fraser v. JCPenney Corp. Inc., No. 17-13262 (11th Cir. May 4, 2018)). Sherwin Fraser had sued the nationwide retailer, alleging race and national origin discrimination, in violation of Title VII of the Civil Rights Act of 1964. He claimed that the company denied him a promotion several times because he is black and a native of Trinidad and Tobago. JCPenney, defending the claims, showed that it had previously promoted Fraser several times, given him high performance ratings and repeatedly recommended that he take advantage of the company’s leadership development program, which he did not. Additionally, it argued that for one of the job openings, he wasn’t the strongest candidate. For another, the company said, he performed poorly in the job interview. Because Fraser was unable to show that these reasons were pretext for discrimination, a district court dismissed his claims.

Fraser appealed, but the 11th Circuit upheld the lower court’s ruling. Where promotions are concerned, “a plaintiff cannot prove pretext by simply arguing or even by showing that he was better qualified than the person who received the position he coveted,” the court said. Employers must take care to ensure that protected characteristics don’t factor into employment decisions. This includes hiring, firing, assignments, leave, pay and more, according to the U.S. Equal Employment Opportunity Commission’s guidance on the subject. As part of that effort, experts often recommend that, when it comes to hiring and promotions, HR maintain diverse hiring panels, standardize interview questions and even consider removing identifying information, like candidates’ names, from application materials.

Finally, in defending discrimination claims, documentation often is key. Here, JCPenney was able to show why it declined to promote Fraser. And when an employer offers a legitimate nondiscriminatory reason for the challenged action, it’s up to the employee to show that the employer’s reason isn’t real.  [Source: RetailDIVE]

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