A federal jury in Texas has awarded former FedEx Corp. employee Jennifer Harris $1.24 million in compensatory and a whopping $365 million in punitive damages following a trial accusing Federal Express of discrimination and retaliation.

Harris, a Black woman who worked for FedEx since 2007, started as an account executive and received multiple promotions and awards over the years until she was terminated in January 2020.

In her most recent position, Harris led a sales team and her performance was measured by the team’s production.

In June 2017, Harris began reporting to a new supervisor who was not pleased with Harris’ performance and at one point suggested Harris voluntarily take a demotion away from management and return to being an account executive, where she previously excelled. After rejecting this suggestion, Harris received a letter of counseling and then a letter of warning. During this time, Harris filed several internal complaints alleging discrimination. Her complaints were investigated and found to be unsubstantiated, and then Harris was terminated shortly thereafter.

Harris sued under the federal law 42 USC 1981, a federal law prohibiting race discrimination in contracts, including employment, and Title VII of the Civil Rights Act.

In denying summary judgment for FedEx, the judge acknowledged that Harris did not fully meet her sales goals, but so did at least one of her white peers who was not similarly disciplined. The court held, “The statistics relied upon by the defendant to establish the plaintiff’s failing are direct evidence of disparity in treatment.”

For example, while Harris’ sales fell .11% below the average, her white peer was 9.79% below the average.

The court held, “Because the plaintiff’s termination was based solely on her failure to meet the defendant’s revenue goal, when others not of her race but in similar positions were not terminated when they did not meet their revenue goals, raises the inference that race could have been a favor in the plaintiff’s termination.”

Because the court denied summary judgment, the case went to a jury trial.

Following a trial on the evidence, the jury spent just two days to determine that Harris suffered retaliation warranting compensatory damages.

The jury also concluded that $365 million should be awarded to Harris for “any reprehensible conduct of the defendant” that the jury found as punitive damages.

In the lawsuit, Harris acknowledged that FedEx published policies promising that employees will not suffer discrimination or retaliation, but identified three major defects on the part of FedEx:

• “FedEx hires HR personnel who are not qualified to follow policies prohibiting discrimination and retaliation.”
• “FedEx fails to adequately train its managers to follow policies prohibiting discrimination and retaliation.”
• “FedEx fails to supervise its managers to ensure they follow policies prohibiting discrimination and retaliation.”

Regardless of what is happening in the economic climate, organizations must invest in training of managers and human resources. Too often managers receive little to no training on how to comply with policy, or their obligations to prevent harassment, discrimination and retaliation.

Organizations should not be “one and done” with this training, but should regularly keep manager best practices at the forefront of development opportunities.

In addition, human resources too often are not provided the necessary resources to be trained on conducting investigations, and to uncover harassment, discrimination and workplace bullying. Investing time and resources to train managers and human resources could avoid large scale litigation such as this, and also provide them with tools to make sure that their employees are successful in their jobs.

This verdict should not dissuade employers from disciplining low performing employees. Frequently I question why certain employees are still employed when the client describes the poor performance or conduct from the employee.

Instead, employers need to implement consistent performance management practices, and be consistent with accountability. Had FedEx held all employees accountable consistently, it would have had every right to discipline and/or terminate Harris if she failed to meet expectations. Legal liability arose when FedEx failed to hold a similarly situated white employee equally accountable.

FedEx plans to appeal, and has stated that the verdict is excessive.