When litigating employment discrimination claims, plaintiffs frequently base their allegations on alleged disparaging comments made by a member of the company’s management. When that manager was the one who made a decision resulting in an adverse employment action, these comments can be considered direct evidence of discrimination. What happens, however, when the manager accused of making discriminatory comments was not the decisionmaker in the action that forms the basis of the lawsuit?

Last week in Hollis v. Morgan State Univ., the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) reversed a grant of summary judgment for an employer based at least in part on disparaging comments allegedly made two years earlier by a department head who did not make the decision to deny the plaintiff a promotion. The plaintiff alleged that she was denied tenure and was ultimately demoted based on her sex and sexual orientation. As proof, she alleged that her department had made comments several years before the promotion decision, calling lesbians "disgusting" and that only male professors in his department would be granted tenure.

The district court dismissed the claims based on the time that lapsed between these comments and the promotion review, and because the department head was not the decisionmaker with regard to her application for tenure. The Fourth Circuit reversed this determination, concluding that the comments were circumstantial evidence that could support an inference of discrimination, especially when combined with irregularities in how the university followed its own procedures, as well as the proffered reasons for denying the plaintiff’s tenure application.

Even if a manager is not directly involved in a decision affecting an employee, that supervisor’s behavior and comments can be used as evidence of a discriminatory influence on the ultimate decision. When these comments are added to other evidence regarding how the decision was made, this can be enough for a plaintiff to avoid dismissal and have their claims heard by a jury.

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