Thursday, July 28, 2016

Hussain v. Federal Express: When does stereotyping violate EEO law?

In Hussain v. Federal Express, No. 15-2967 (7th Cir. July 26, 2016), the court held that Shabi Hussain had presented sufficient evidence for a reasonable jury to conclude that she was not promoted to senior manager because of her national origin and/or her sex. In reaching this conclusion, the court relied heavily on evidence that arguably reflected stereotyping based on national origin or sex. In a prior post about a congressional amici brief filed in Christiansen v. Omnicom Group, I discussed why I think EEO law generally covers discrimination based on an employee's failure to conform to a stereotype but does not cover the converse -- discrimination because an employee does conform to a stereotype, e.g., discrimination against a woman because she is not aggressive. I think the Seventh Circuit has made the same mistake in Hussain that the congressional amici made in their Christiansen brief by treating stereotyping as a form of covered discrimination in and of itself, regardless of whether it is actually grounded in discrimination between protected groups.

After Hussain was rejected for a promotion, the district manager gave her feedback on how she could improve:
After briefly discussing her performance at the interview, [the district manager] panned her behavior at an earlier meeting, telling her that she was "overly aggressive" in criticizing others, too emotional, and had inappropriate facial expressions. He also referred to national origin, telling her to "be more Indian." When Hussain replied that "I am Indian," [the district manager] pivoted and advised, "you should be more like an American Indian. You should be stoic. You should be expressionless."
Discussing Hussain's claim of national origin and sex discrimination, the court explained:
A reasonable juror could conclude that, for [the district manager] to promote Hussain, she needed to embody a trait stereotypically associated with a national origin -- American Indian -- different from hers. Alternatively, [the district manager] may have envisioned desirable features for a person of Indian descent and wanted Hussain to reflect that stereotype -- she needed to be "more Indian." Either way, this is evidence of impermissible bias. Title VII forbids an employer to base a hiring decision on a candidate's ability to fit a stereotype of her national origin, or her inability to fit a stereotype of a different national group or gender.
Hussain also met her burden of production with respect to sex discrimination. The evidence, including [the district manager's] comments that Hussain was "overly aggressive," "too emotional," and showed too much facial expression, reasonably suggests that [the district manager] did not promote her because of her sex . . . .
In my view, the Seventh Circuit got it half right. If an employer takes an adverse action against an employee for not conforming to stereotypes associated with the employee's sex or national origin group, then that constitutes unlawful discrimination because the employer presumably would not have taken the same action against someone of the opposite sex or a different national origin group who shared the same characteristic. For instance, if an employer refuses to hire American Indians who are not stoic but hires non-stoic individuals of other national origin groups, then that constitutes national origin discrimination. On the other hand, if an employer only hires stoic individuals, then that is not national origin discrimination, at least not disparate treatment, since all national origin groups are treated equally. The Seventh Circuit's peculiar analysis suggests that refusing to hire someone because she is not stoic -- or by extension, because she is stoic -- is unlawful national origin discrimination. Period.
Ultimately, however, even if I am correct, the evidence may have nonetheless been sufficient to support both Hussain's national origin claim and her sex claim. As the court noted, the district manager's comment that Hussain should "be more Indian" may have reflected bias based on Hussain's perceived failure to conform to stereotypes about her national origin. And Hussain's evidence supporting her claim of sex discrimination was not limited to the district manager's comment: an HR representative who attended the meeting in which the district manager thought Hussain's behavior was inappropriate testified that he saw nothing wrong with Hussain's conduct; Hussain's performance reviews praised her leadership and managerial skills; and the district manager had a "troubling pattern of promoting only men to senior management."

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.