Reverse, Reverse Discrimination Claims Make Their Appearance
As readers of this newsletter know, after the Trump administration came into office, the Department of Labor made clear its skepticism of the legality of Diversity, Equity and Inclusion (DEI) programs. Threats by the federal government against law firms and universities have led to institutions abandoning their DEI programs. As every action has a reaction, claims are starting to arise asserting that company’s’ efforts to rid themselves of their own DEI programs also constitutes unlawful discrimination.
One recent case is Washington v. International Business Machines Corp., filed in the U.S. District Court for the District of Maryland. Zena Washington had been employed by IBM for 26 years. She claims to have received positive performance reviews throughout her tenure and was put into a program designed to prepare employees for senior executive management-level positions.
After President Trump took office in January of 2025, he issued multiple executive orders canceling DEI programs across the federal government and instituted policies to dissuade private contractors from having similar DEI programs. IBM CEO Arvind Krishna, in response, publicly stated that he would comply with the government's DEI directives.
Shortly thereafter, Washington claims that there was an "inexplicable exodus" of Black executives from IBM. IBM fired Washington in February 2025, ostensibly as part of a reduction in force. Washington later learned that IBM gave her job to an Asian employee who had fewer qualifications. Washington has sued IBM for over $1 million claiming that IBM discriminated against her because of her race to placate the Trump administration’s hostility toward DEI. IBM has multiple lucrative contracts with the federal government.
The lesson here: Discrimination claims can arise in unexpected places. When terminating an employee, always confirm that there are legitimate, non-discriminatory reasons for the termination. And make sure those reasons are in writing and communicated to the employee at the time of termination.
Courts Should Not Second Guess an Employer’s Honest Belief About an Employee’s Misconduct and the Reasons for Employee Discipline (Or Maybe They Should)
Many courts recognize the “honest belief” doctrine in employment discrimination cases. Simply, that doctrine stands for the proposition that an employer's decision with regard to an employee, such as a termination, will not be considered pretext for unlawful discrimination if the employer had an honest, good-faith belief that the employee engaged in misconduct, even if that belief later proves to be mistaken. The doctrine holds that courts should look at the facts as they appeared to the person making the decision in question. The relevant inquiry is whether the employer honestly believed its reasons and acted in good faith upon them.
Some courts reject the doctrine. A law professor has requested the United States Supreme Court to weigh in. In Beny v. University of Michigan, a Black law professor claims she was discriminated against by the University because of her race in the form of the University freezing her pay until 2027 and revoking certain privileges of employment. The University claims that her pay was frozen and her privileges revoked because she abandoned teaching a class. The district court granted the University summary judgment on the grounds that there was no reason to doubt that Professor Beny had abandoned her class and that constituted a good faith reason for her pay freeze and revocation of responsibilities. The Sixth Circuit Court of Appeals affirmed the decision. Professor Beny claims that a critical disputed fact was whether the law school dean, who made the decision to freeze her pay, knew that she had requested leave prior to the dean’s decision (thus arguing that the decision to freeze her pay was retaliation for her requesting leave). The district court and Sixth Circuit found that there was no credible evidence that the dean knew about Professor Beny’s request for leave when he made the decision to freeze her pay. The courts determined that the University had a good faith reason to freeze Professor Beny’s pay and granted the University summary judgment.
In requesting that the United States Supreme Court reverse the lower courts’ decision, Professor Beny argues that "[t]he result transforms Title VII from a meaningful civil rights protection into an exercise in judicial deference to employer assertions" and "[a] jury is supposed to decide whom to believe and why on such contested issues of material fact." In short, Professor Beny argues that whether an employer had an “honest belief” about an employee’s misconduct warranting disciplinary action – even if that honest belief is proven wrong – should be decided by a jury, not a court. We will monitor this case to see if the Supreme Court decides to take the case. In the meantime, employers can feel a certain level of comfort that most courts will not second guess their good faith decisions regarding employment decisions. But the key is, the decisions must be made in good faith, based on reasonably understood facts.
One final note: Professor Beny has not been fired by the University and is still listed a professor on the law school’s website. That has to make for some awkward faculty meetings.
Deny Remote Work as an Accommodation at Your Peril
A New York jury just awarded two plaintiffs who were denied remote work as an Americans with Disabilities Act (ADA) accommodation $3.1 million dollars. The employer was National Grid USA, an electric utility provider in the Northeastern United States. The plaintiffs worked as emergency crew dispatchers and were allowed to work remotely during the COVID-19 pandemic. When National Grid transitioned workers to a hybrid work schedule, the plaintiffs were initially allowed to continue to work remotely: One employee to manage a back injury, diabetes, and a gastrointestinal condition; and the other employee to manage back and hip injuries and an anxiety disorder. But in June 2022, National Grid said it could no longer accommodate the plaintiffs working from home because of the nature of their jobs. The plaintiffs claimed that National Grid failed to explain why their remote work requests could not be fulfilled. The jury agreed with the plaintiffs.
COVID-19 changed employment law. Remote work transitioned from an exotic, unusual occurrence to something nearly every employee does. Creating job duty descriptions, which specifically and reasonably explain why working in person is an essential function of a particular job, is critical in dealing with remote-work accommodation requests. Without a clear job duty description that reasonably shows that in-person work is an essential function of a job, employers will be hard pressed to deny future requests for remote work as ADA accommodations as National Grid just learned.
