Top Employment Attorneys answers: Can I be fired when a White employee only got a warning for the same conduct? What should I do if I was fired today because of my race, gender or national origin? What can I do if Human Resources (HR) is racist?
Normally, when our employment attorneys blog about various aspects of employment law, we start with the laws and work back to an example. However, the facts of this recent news story on caught my eye.
Dr. Sandra Guerra was a chief medical officer for a branch of the San Antonio Metropolitan Health District (Humana). So, she’s the boss. A white male subordinate filed an internal complaint with Humana alleging sexual harassment committed by Guerra. One example provided to the Court including a text message exchange. The subordinate texted Guerra: “I went to bed early,” and she texted back: “Alone?” In another text message example provided to the Court, the employee texted, “My flight left at 6 am this morning and I don’t know why the hell I chose this flight,” to which Guerra texted back, “I hope the clothes were on your body.” Further allegations of sex harassment were also included.
According to the lawsuit, Guerra admitted this conduct. Shortly after admitting to this conduct, the employer fired her citing to a zero tolerance for sexual harassment.
At this point, you might be thinking that given Guerra’s admissions, this should be a clean case of sexual harassment, but you would be wrong.
This was a race/color and national origin discrimination case was brought by Guerra, who is of Mexican-American decent, against Humana. The gist of the lawsuit was that Guerra, knowing where other bodies were buried, was not treated the same as other white executives that engaged in similar or worse conduct. Specifically, Guerra asserted that she was the only minority in a leadership position and that the employer fired her immediately, unlike the progressive discipline given to white colleagues, making this a wrongful termination. Further, Dr. Guerra further asserted in her complaint that she had no human resources violations during her time at Humana and that her conduct had not been unwelcomed by the subordinate until she had reprimanded him shortly before his report to HR.
Title VII of the Civil Rights Act of 1964 is a federal law that protects employees from being treated differently because of their race/color, religion, gender/sex, national origin, age, and/or disability status. Thus, under Title VII, an employer cannot take a harsher adverse employment action against a Black or Mexican female employee for the same conduct then it would against a White male. Applied to this case, if Humana hypothetically had previously given a White male doctor a written warning or suspension for directly soliciting sex or sexual activities from a subordinate, then Guerra could point to the fact that she was treated worse for lesser conduct.
You may be thinking that not being able to fire Guerra put the employer in a no-win situation if her subordinate was pushing a sexual harassment claim. However, the employer created the no-win situation much earlier when it allegedly allowed other non-minority employees to engage in allegedly worse conduct. The employer’s original tolerance for White male sexual harassment created a standard that it had to later apply equally.
In the end, this would be a case where the jury likely had no sympathy for either party. They both recognized this – and the employer likely wanted to avoid its past bodies from being dug up. As a result, they reached an undisclosed settlement.
The moral of this lesson is that you don’t need to be a perfect employee to have a discrimination or wrongful firing claim.
If you are searching online “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against or harassed based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our lawyers in Cleveland, Columbus, Toledo, Detroit, and Cincinnati to get help now. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
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