Is an employer liable for “accidently” promoting white, male employees while failing to promote an African-American woman?

What happened. “Lyn,” who worked for Ford Motor Co., was repeatedly passed over for promotions. She filed a charge with EEOC, claiming she was denied promotions because of her race and sex. An HR supervisor, “Brad,” responded to the charge with evidence that the promoted employees all had higher performance ratings than Lyn. EEOC dismissed the charge.

Lyn filed subsequent charges with EEOC. Not long after she filed her third charge, an HR manager made a note of a conversation he had with Brad about documenting Lyn’s “complaint activity.” Meanwhile, some employees were asked by Ford to give information about Lyn’s complaints. Lyn filed a lawsuit alleging discrimination.

About 4 months later, Ford fired Lyn, citing several violations of company policy. Lyn added a retaliation claim to her lawsuit. Later, during the discovery phase of the lawsuit, Brad learned that three of the promoted employees did not have higher performance ratings than Lyn and should not have been promoted. He maintained that the promotions happened by mistake because they were done without his concurrence. Lyn’s lawsuit was dismissed by the district court and she appealed to the 6th Circuit, which covers Kentucky, Michigan, Ohio, and Tennessee.

What the court said. The court affirmed the lower court’s ruling on the discrimination charge, stating that Ford’s legitimate, nondiscriminatory reason for promoting other employees instead of Lyn was not a pretext for discrimination, despite the fact that the other employees were promoted in error. The court noted that if an employer has an honest belief in its nondiscriminatory reason for an adverse employment action, the fact that the reason is later shown to be incorrect doesn’t mean it was a pretext for discrimination.

However, the court reversed the lower court’s ruling on the retaliation claim. The court cited as evidence the fact that only a few days elapsed between the filing of one of the EEOC charges and the beginning of heightened scrutiny by Ford. It also noted that Ford fired Lyn for violations that typically didn’t warrant any formal discipline. The court ruled there was sufficient evidence to allow Lyn to proceed to trial. Upshaw v. Ford Motor Co., U.S. Court of Appeals for the 6th Circuit, No. 08-3246 (8/14/09).

Point to remember: An employer should carefully review information it’s relying on to make important employment decisions. It’s better to have faulty information surface during a review process than to discover it while preparing for litigation.