This story gets filed under: “How Not to Deal with Associate Layoffs and Subsequent Discrimination Allegations” (via the WSJ Law Blog):
Zafar Hasan, a Muslim of Indian descent, claims that, post-9/11, he was fired from Foley & Lardner because of his religion, race, national origin and color. The district court granted the firm’s motion for summary judgment. [Yesterday], a three-judge panel of the Seventh Circuit reversed.
The Seventh Circuit opinion in Hasan v. Foley & Lardner, 07-3025 (7th Cir. Dec. 15, 2008) notes:
Foley initially claimed that it fired Mr. Hasan for poor performance. . . . However, after Foley located Mr. Hasan’s work evaluations, which were mostly positive, the firm changed its tune, maintaining that it actually fired Mr. Hasan not because his work was unacceptable but because it only had enough work to keep the best associates in the department occupied.
A reasonable jury could also find that Foley’s alternative explanation — that it fired Mr. Hasan because the firm did not have enough work for all the associates in the Business Law Department — is pretextual as well. . . . One partner reported that Mr. Hasan was the only associate fired for lack of work; another testified at his deposition that Foley had dismissed other lawyers because of the economic climate. And the internal firm-wide memo claimed that Foley’s economic performance in 2001-2002 was strong, while Foley now contends that the firm was in a downward spiral that required it to jettison Mr. Hasan. A jury could reasonably infer from these facts that Foley partners directed work towards other, non-Muslim associates in the Business Law Department in order to use Mr. Hasan’s lack of work as a pretext to fire him.
A law firm, especially one with a prominent labor and employment group, should just know better. And, at the very least, not provide law exam fodder for the employment discrimination law professors of the world.
Cross posted at Workplace Prof Blog.
As a former Foley partner, I found the case interesting. I know some, but not all, of the people involved. The decision to reverse the district court’s grant of summary judgment seems clearly correct. There is enough to send the case to a trier of fact.
But I have three observations about the court’s analysis. I disagree, in particular, with the court’s description of Doug Hagerman’s comments as anti-Islamic. I would be surprised if Doug harbors any such sentiments and I suspect that he was simply expressing the large firm bias against doing anything that is controversial.
Second, I think there is no probative value in Stan Jaspan (who I also doubt has any anti-Muslim biases) raising a concern about whether Hasan might make a claim against the firm. I reviewed firing decisions frequently when I was in-house and one of the first issues that always arises is whether the employee is a member of a protected class.
Third, although it’s a matter for the trier of fact, the firing if large firm associates needs to be understood in context. Lawyers can do fine work but, if they are unable to make the transition to what is expected by the firm during the next stage of their career, they can find themselves on the wrong side of the “up or out” decision, notwithstanding good prior performance. Large firms are not structured for lawyers to stay in the same place.
Of course, I’m not suggesting that this was the case with Mr. Hasan and I agree with Paul that my old partners did not handle this well.