Court Holds an Employer's Prior Leniency Doesn't Create Inference of Pretext

The federal court of appeals that sits in Denver issued a rather interesting race and retaliation decision today in the case of Wythe Crowe v. ADT.  Numerous complaints of harassment and improper conduct had been made against the employee (he, in turn, had complained about racial bias in promotions).  The employee was a minority, however, and the implication in the decision was that ADT, the employer, had been too lenient towards him because he was a minority.  After one more complaint of harassment, an HR manager wrote a report, which relied upon complaints against Crowe that occurred well before and after Crowe complained about promotion bias.  (The report's conclusion is worth setting out as it reflects a frustration many HR Managers feel): 

 [W]hy have we allowed Wythe to treat management and specifically, women in positions of power, with such disrespect? Why did ADT continue to try to appease this person and not support or protect our management team from this type of harassing and disrespectful abuse?  This behavior is against the law at any company in this country.  Why do we allow it here at ADT?  If Heather England took this case to the EEOC or to court, ADT could lose because we were not there to protect all employees from a hostile work environment that is free from harassment.

. . . .

The ramifications of not terminating Wythe Crowe could be huge! Think about this: What if a white male exhibits the same harassing, insubordinate, discriminatory, and disrespectful behavior as Wythe has done over the years.  If we decide to fire this person, we have now set ourselves up for a reverse discrimination lawsuit.  For that matter, since we have allowed Wythe to exhibit this type of behavior for many years, it does not matter whether the next person  is white, yellow, or pink, we are setting ourselves up for a potential lawsuit due to the precedent we have set by allowing Wythe Crowe to continue his employment at ADT.

(The court rejected Crowe's argument that this report was itself evidence of bias.)  What was most interesting was, when it came to the retaliation claim, the court rejected the employee's argument that the employer's history of being lenient towards him itself raises an inference of pretext:

Accepting Mr. Crowe’s argument would have the peculiar result of penalizing employers which, like ADT did in this case, attempt to rectify alleged inappropriate behavior instead of immediately terminating an employee upon the first transgression. Indeed, Mr. Crowe’s argument effectively inverts an employer’s incentives—if two employees engage in the same protected behavior, terminating the employee with a longer, more extensive history of serious complaints would invite litigation, while terminating the employee with a shorter, less extensive history of minor complaints would not entail that risk. In sum, ADT’s prior leniency with Mr. Crowe, without more, does not constitute evidence from which a reasonable jury could conclude that firing Mr. Crowe based on his long history of alleged in appropriate behavior was pretextual.

The idea isn't unprecedented.  Years ago, the federal court of appeals in Chicago stated essentially the same thing when it said, "we cannot vilify every employer that exercises caution in the handling of delicate employment situations." Vore v. Indiana Bell, 32 F.3d 1161 (7th Cir. 1994).

No doubt, it is always better to be as even handed as possible in imposing disciplinary action but in today's costly litigation climate, the decision preserves some flexibilty for cautious employers.