Bias and retaliation claims: New court ruling shows keys to beating them

A new ruling from a federal appeals court provides important insight for employers and HR pros on how to successfully defend employee claims of bias or retaliation.

And while the case involves a state-specific law called the Washington Law Against Discrimination, its lessons apply equally to claims filed under other similar state laws as well as those filed under the federal law known as Title VII.

In other words, it holds valuable lessons for most employers.

The suit was filed on behalf of Jon Crossland, who worked in a sales position for a company called WideOrbit, Inc.

It alleged a violation of Washington’s statutory ban on discrimination in employment, which makes it unlawful for an employer to take any adverse action against a person who is between the ages of 40 and 70 on the basis of their age, according to the court’s ruling.

Under the law, an “adverse action” essentially is any significant negative job action, such as termination, demotion, or suspension. Some job actions, such as lateral transfers, can present closer questions as to whether the action was really “adverse.” This is an important concept to keep in mind because an employee cannot win a discrimination claim without showing an adverse action. In this case, the issue of whether the challenged job action was “adverse” did not arise because Crossland said he was unlawfully terminated – which is the quintessential example of an adverse job action.

Bias, retaliation alleged

The suit, which was filed by the personal representative for the estate of the now-deceased Crossland, alleged that WideOrbit violated the state law by terminating Crossland based on his advanced age. It further alleged that the employer violated the same law by unlawfully retaliating against the employee. More specifically, it said WideOrbit terminated Crossland’s employment because he contested two allegedly discriminatory job actions.

The two allegedly discriminatory job actions were:

• the reassignment of some of Crossland’s sales accounts, and
• his objection “to the presentation of a hardhat adorned with allegedly ageist symbols.”

The court’s ruling does not provide further details relating to the hardhat presentation.

A lower court ruled in favor of WideOrbit on the bias and retaliation claims, and the personal representative appealed to the Ninth Circuit Court of Appeals.

On appeal, the court first explained that to win, the personal representative had to make a very basic showing on Crossland’s behalf: that he was doing satisfactory work at the time of his separation from employment.

But she did not meet this basic requirement, the court decided. Instead, the record was clear that Crossland did not meet his sales quotas in both 2016 and 2017. Further, the record showed that he sometimes missed sales quotas badly. In fact, in the first half of 2018, he attained $30,000 in new sales when his quota was $8 million.

The representative argued that Crossland performed well with respect to renewals. But the evidence showed that WideOrbit defined success in terms of new sales, and Crossland fell far short in this area.

As to the reassignment of some of Crossland’s accounts, the court determined that WideOrbit provided a legitimate reason for the move: It was engaging in a broad reorganization. There was no evidence that the reorganization was not the real reason for the change, the court said.

And as to the alleged hardhat incident, the court said that the representative did not show, as she was required to do, that the incident created a hostile job environment. It was isolated, the court noted, and there was no claim that it directly impacted Crossland’s work.

Based on all of these findings, the Ninth Circuit appeals court affirmed the lower court’s ruling in favor of the employer.

Key takeaways for HR

• Set clear performance standards and hold employees to them. Track job performance and take appropriate remedial action when standards are not met. In this case, the performance standard was clearly defined in terms of a monetary value assigned for new sales. And it was clear that the standard was not met. This is extremely strong evidence in defense of a bias allegation.
• Be prepared to provide a well-documented, legitimate and non-discriminatory reason for the challenged job action. Here, the employer successfully presented evidence that the employee’s accounts were reassigned for the legitimate reason that the employer was reorganizing.
• The employer, and not the employee, gets to decide what the job requirements are and which job requirements are most important. In this case, the representative tried to dull the cut of his poor performance regarding new sales by pointing to his better record with respect to renewals. But as the court explained, the employer was free to put more emphasis on his job performance relating to new sales.
• Hostile environment claims are not viable if they are based on relatively minor and isolated incidents. While care should be taken to ensure that even the slightest incidents of harassment based on any protected category do not take place, addressing minor incidents quickly and effectively can go a long way toward defeating a claim that an employee was subjected to an illegally hostile job environment.

Walters v. WideOrbit, Inc., No. 21-36006, 2022 WL 4077108 (9th Cir. 9/6/22).