Do as I Say, Not as I Do

The Society for Human Resources Management was recently involved in an employment discrimination lawsuit that resulted in a jury awarding $1.5 million dollars in compensatory damages and $10 million dollars in punitive damages to an Egyptian-American employee who alleged that her supervisor treated her differently from other employees due to her race.  The employee also alleged that she was retaliated against after she filed a formal complaint regarding her treatment. The case, Mohamed v. Society for Human Resource Management, was filed in Colorado in September 2022.  SHRM’s motion for summary judgment dismissing the complaint was denied by the court and the plaintiff ultimately won that multimillion-dollar jury verdict against SHRM. 

The employee, an instructional designer, had strong performance reviews and was promoted to Senior Instructional Designer and assigned to a new supervisor.  Shortly after being promoted, Mohamed expressed concerns that her supervisor was micromanaging her and other non-White employees.  Mohamed expressed these concerns directly with her supervisor and then, when the situation did not improve, filed a formal complaint with Human Resources.  During the time that the Human Resources representative was “investigating” Mohamed’s complaint, he was also working with Mohamed’s supervisor in terms of ghostwriting emails regarding Mohamed’s performance.  The Human Resources representative who was purportedly investing the complaint never spoke to Mohamed about the issues that she raised and determined that the complaint was unfounded.  The facts provided in court supported the claims that were raised by the plaintiff and it was shown that White employees engaged in similar conduct to that which was provided as the justification for the plaintiff’s termination – i.e., a missed deadline. 

In rejecting SHRM’s summary judgment motion, the court found that the evidence provided in court supported the plaintiff’s claim that her termination was both discriminatory and retaliatory. Citing the fact that the decision to terminate the plaintiff was made before an investigation into her claims was ever conducted and Human Resource’s role in ghostwriting emails and drafting termination documents shortly after the complaint was made, the court determined that there was sufficient evidence for a jury to find that SHRM’s purported reason for terminating the plaintiff was pretextual.  Ultimately, after lengthy court proceedings, the jury did find that the reasons for plaintiff’s termination was her race and her complaints against her supervisor and granted the plaintiff damages in the amount of $11.5 million. 

One aspect of this case that makes it so fascinating is the fact that the defendant, SHRM, holds itself out as an expert in labor and employment law and provides advice to employers on how to handle compliance matters.  Clearly, in this instance, SHRM failed to apply its own advice.  Rather than using an independent investigator to conduct a thorough investigation into the plaintiff’s claims, SHRM conducted a sham investigation and actually directed the HR person to work with the supervisor who was the subject of the complaint to build a case for termination of the employee.  This case included a false deadline that, even though the plaintiff met that deadline, she was terminated for missing the deadline when other, White employees who missed deadlines on a regular basis were not fired. 

Besides SHRM’s overall ineptness in handling this situation, what lessons can employers learn from this case?  First, it is important to remember that retaliation complaints often can stand on their own regardless of whether the initial claim of discrimination is found to be true.  Much like the saying that “it is not the crime, but the cover up,” retaliating against someone for making a complaint can be much more damaging than simply responding to the complaint.  Second, when an employee brings a complaint forward, it is important that an employer take the complaint seriously, investigate the complaint thoroughly with an independent investigation, and determine the merits of the complaint based on the facts of the case and not on some predetermined notion of the credibility or effectiveness of the person who is the subject of the complaint or – for that matter – of the individual bringing the complaint.

Finally, consistency in how employees are treated is one of the most effective ways of ensuring that employers are proactively managing employee relations and avoiding employee complaints.  Organizational culture plays a primary role in an employer’s effectiveness at avoiding employee complaints and ensuring a positive work environment.  Consistent treatment of employees, avoiding favoritism in the workplace, and an openness to employee feedback and concerns are all important elements of employment law compliance and are great tools for avoiding the type of liability that this case imposed on SHRM. 

myHRcounsel is here to assist employers in creating policies and practices that work toward creating a positive work culture and avoid employee complaints and lawsuits.