Employees may have heavy burden in showing disparate treatment

While employers are understandably concerned about disparate treatment claims, the courts have become increasingly demanding in what they require from employees to establish the employer actually treated them differently enough to support the finding of a prohibited animus. A recent case from the U.S. 8th Circuit Court of Appeals (which covers Arkansas and Missouri employers) shows how a union contract can be a shield against state-.law-based claims.

Facts

Leah Findlator and Leah Baruch worked as lab technicians for Allina Health Clinics. Findlator is a black woman from the United Kingdom who was employed by the company from August 2012 until her termination on December 6, 2016.

While Findlator had a positive performance history at Allina, she had interpersonal problems with Baruch, who is white. Findlator complained to supervisors about difficulties with Baruch and alleged Baruch made a comment about Findlator being in a gang.

On December 2, 2016, Findlator and Baruch got into a heated argument that spilled out of the lab and into an occupied patient waiting room. As the argument escalated, Baruch took off her lab coat and twice threw it in Findlator's direction. Findlator then approached Baruch, put her hands on Baruch's shoulders, and pushed her.

After HR completed its investigation of the incident, Allina issued corrective action notices to both Findlator and Baruch: