After reviewing the case summary of Thomas v. Eastman Kodak Company, I would have sided with the plaintiff (Circuit, 1998). In my opinion, the key point is the use of a ranking system based on potentially biased performance reviews to decide whom to lay off. In theory, the use of a ranking system to make this determination is a sound one and in fact, this type of system is often used. In practice, however, things are a little murkier. The problem arises with the fact that writing a truly unbiased performance appraisal is incredibly difficult. Allen Smith of SHRM states that if an employer relies on performance-based criteria in selecting who will be laid off, it should minimize the level of subjectivity (2019, p. 2). That does not appear to have happened in this case. There would be no issue if the reviews were 100% based on objective measures such as copy machines sold, speed of service, customer survey scores, number of customer compliments, etc. However, most performance reviews contain both objective and subjective ratings based on employee leadership, communication, and other soft skills. These subjective ratings are based on the appraisers opinion and do not necessarily have a basis in fact.

The evidence presented shows that Thomass review scores declined markedly once she had a new supervisor writing them. The employee selected for the Customer Service Manager role, Claire Flannery, was in direct competition with Thomas for the position. Although Thomas was performing at a high level at the time the new position was created, she was told that she was not qualified for the job. The case summary does not indicate what specific qualifications she lacked. Once the new CSM was in place, she appears to have taken actions suggesting that she was attempting to sabotage Thomas whenever possible (Circuit, 1998). As Thomas was the only black CSR and the other CSRs were not experiencing the same sabotage from the CSM, it seems reasonable to assume that this behavior was directed at Thomas because she was black.

Once Flannery began writing Thomas reviews, the scores were much lower than she had ever received during her many years as a Kodak employee. Given the supervisors behavior toward her, there appears to be racial bias present in the writing of Thomass reviews. The biased reviews continued for 3 years, and when layoffs were proposed, the review scores from only these 3 years were used to rank employees in order to decide who would be laid off (Circuit, 1998). During the trial, Kodak indicated that they had applied the formula used to select the plaintiff for layoff consistently to all eligible employees (Fitzhugh, 2000, p.1). This may be true; however, if some of the review scores used in the formula reflected racial bias, then their use of the formula could not be uniformly fair. By considering only the review scores received during the years Thomas worked for a supervisor with a racial bias towards her, the company discriminated against her when it laid her off, though they may not have realized it at the time.

What are your thoughts on this?