Dive Brief:

• The national origin discrimination claims of a New York City doctor should have been sent to a jury, the 2nd U.S. Circuit Court of Appeals ruled, vacating a lower court’s decision to grant the employer summary judgment (Moza v. New York City Health and Hospitals Corp., et al, No. 17-1051-cv (2nd Cir. April 15, 2019)).
• Nashaat Moza, an assistant director of risk management for Kings County Hospital Center, sued after he was fired. The hospital claimed that the termination was because of poor work performance. However, Moza, who is Egyptian, said the firing was based on his national origin. For the first four years of his employment, Moza received evaluations rating him as "fully competent," the appeals court said in its opinion. But Moza said things began to change during his fifth year of employment when he reported to a new supervisor. The supervisor "did not like him from the start and discriminated against him because he is Egyptian,” Moza said. In one instance, Moza said he overheard the new supervisor say, "I know how to terminate this stupid Egyptian guy." Moza claimed discrimination in violation of federal and local law based on race, ethnicity, national origin and age.
• The district court granted summary judgment for the employer, finding that the defendants had a legitimate, non-discriminatory reason for firing Moza and that his "deteriorating performance was well-documented," but the appeals court disagreed. The appellate court said the case should be heard by a jury because Moza had shown discriminatory intent through, among other things, the supervisor's statements.

Dive Insight:

Comments by managers and supervisors continue to land employers in legal trouble. Front-line managers and supervisors are responsible for a large number of discrimination and retaliation claims, experts have told stakeholders. The lawsuit of a 59-year-old dispatch supervisor who was criticized for his "dinosaur age related theories" survived a motion for summary judgment on his age bias claim; the court said the "dinosaur" comment was "highly probative" of discriminatory intent, in part, because it was made by the decision-maker in the worker’s firing.

HR can prevent issues by making sure that managers and supervisors take part in periodic compliance training. Some employers also provide bias training; notably, bias training typically works best when presented in a non-judgmental way that allows employees to understand that everyone has biases and provides a means for workers to identify and examine their biases, experts previously told HR Dive.

HR also can head off claims by making sure that discipline is doled out evenly. The failure to perform key aspects of a job can serve as the basis for discipline as long as other employees also purportedly failing to perform are disciplined in the same way. In Ortiz v. Cedar Crest College, the 3rd Circuit ruled Michael Oritz, a Cedar Crest College employee, failed to perform routine data backups, a key duty of his job, and that his age discrimination did not have sufficient evidence.