A common misconception in employment law is that to be a plaintiff you must have been or are a model employee. This myth prevents many potential plaintiffs from pursuing action against their employers. My aim in this article is to address this misconception and hopefully dispel it.
In its simplest form, employment law boils down to a three-step process: 1) there is discrimination or retaliation, 2) this discrimination or retaliation is because of a protected characteristic or protected activity and 3) an adverse action was taken against the employee as a result. Within this framework there are little details and deviations that cannot be ignored. However, in its simplicity it also showcases how the law does not expect perfection.
For employees experiencing discrimination and/or retaliation, having a disciplinary history may feel like an insurmountable obstacle to any employment claim they may want to pursue. This concern is the fuel that perpetuates the myth of the perfect plaintiff, but as the old adage goes, the devil is in the details.
For the sake of illustration I would like to pose the following example. A company’s policy states that after three tardies an employee can be terminated. Subsequently, Kiah, an employee of the company who also happens to be black, receives her third tardy. It is further undisputed that she has in fact has been late on three separate occasions. The situation seems straightforward enough: Kiah was tardy on multiple occasions, received multiple write-ups and can now be terminated. Except in this case, Kiah’s supervisor, Cary, is only writing up Kiah for coming in late. In fact, it is well known that Cary is only writing up the black employees that she supervises, and Kiah’s non-black coworkers who are tardy are not being written up by Cary. With that layer added, the situation becomes less straightforward, and a more nefarious reason for Cary’s treatment can be seen. Now, despite Kiah being tardy, it also appears that she may have experienced discrimination because her boss is singling out her black subordinates for different treatment because of their race. Neither cancels out the other. Kiah can still experience actionable discrimination because of Cary’s unequal treatment while also having write-ups for being tardy.
The myth of the perfect plaintiff would dictate that if Kiah was terminated after multiple tardies, then the supervisor singling her out for different treatment could not have discriminated against her. This is a myth for a reason. Employment law and in particular Title VII and Section 1981 recognizes that situations like the one above occur. In our practice, seeing a selective enforcement of the rules is not uncommon. Moreover, it is rarely ever the case that an employee is perfect. This does not mean that a disciplinary action or record will necessarily not play a role or potentially weaken an employment law case, but even non-perfect employees enjoy the protection of the anti-discrimination laws.
The biggest thing to remember is that these situations are fact-intensive—like above, Kiah’s tardies in the context of how her supervisor applied a rule shows discrimination. Simply because an employee has a disciplinary history does not erase or nullify an employer’s discrimination or retaliation. Therefore, if an employer has discriminated or retaliated against you do not let the myth prevent you from seeking out representation. Our firm will be happy to find out the best way to dispel the myth with you.