Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

 See an interesting article published online by The New York Times today on the claim made by local Black American workers that large farms (such as the one in Georgia pictured in the newspaper which grows onions) prefer employing Mexican workers because they can exploit them.  “They contend that they are illegally discouraged from applying for work and treated shabbily by farmers who prefer the foreigners for their malleability.”

Said one worker: “They like the Mexicans because they are scared and will do anything they tell them to.”   

This tension exists when the unemployment rate is high, so this may simply be crass economics at work. This is a real hot button issue for labor lawyers (and economists) on either side of the table.

• Print
• Comments
• Trackbacks
• Share Link

In a report entitled “African American Workgroup Report,” designed to coincide with the EEOC’s recent Strategic Plan for Fiscal Years 2012-2016, an internal agency work group of the EEOC detailed the following seven “obstacles” to equal opportunities in the federal workforce for African-Americans:  

• Unconscious biases and perceptions about African Americans still play a significant role in employment decisions in the federal sector.
• African Americans lack adequate mentoring and networking opportunities for higher-level and management positions.
• Insufficient training and development assignments perpetuate inequalities in skills and opportunities for African Americans.
• Narrow recruitment methods negatively impact African Americans.
• The perception of widespread inequality among African Americans in the federal work force hinders their career advancement.
• Educational requirements create obstacles for African Americans in the federal work force.
• EEO regulations and laws are not adequately followed by agencies and are not effectively enforced.

The report can be obtained at: http://www.eeoc.gov/federal/reports/aawg.cfm.

• Print
• Comments
• Trackbacks
• Share Link

An African-American employee in NYC who was subjected to daily physical and verbal abuse for 1½ years just settled his case for $190,000, the EEOC announced.

The foreman of Day & Zimmerman NPS, a leading supplier to the power industry, often tripped the employee and once kicked him.  He told racist stories and jokes where African-Americans were referred to as “stupid” and “incompetent,” said that an African-American in the news “deserved to be shot,” and said that candidate Obama “would be shot before the country allowed a black president.”  

The EEOC said that "[the employee] complained to management many times for more than a year regarding the harassment, and that when Day & Zimmerman finally arranged a meeting in response, it disciplined [him] less than an hour later, and then fired him that same day, citing a false safety violation as a reason.”  

Readers:  We cite these outrageious cases because some of you are so appalled that you think that these cases are made up. 

• Print
• Comments
• Trackbacks
• Share Link

On February 4, 2013 we published a post noting that juries do not like nooses or the N-word in the workplace.  Our post commented on a North Carolina federal jury which had just awarded $200,000 in compensatory and punitive damages against a trucking company on behalf of two former African-American truck drivers who were repeatedly subjected to such racist harassment.  

Many readers wrote to us that they were shocked and appalled at the racism which the trial exposed. One plaintiff was repeatedly subjected to slurs by his supervisor and other employees such as "n----r,"  "monkey" and "boy," was asked by a white co-worker if he wanted to be the "coon" in  their "coon hunt," and had a co-worker come to him with a noose saying "This is for you.  Do you want to hang  from the family tree?"  The second driver claimed that the company's general manager told him, when he was the only African-American employee, that he was the company's "token black," told him “Don't find a noose with your name on it," and spoke to him of having some of his "friends" visit the driver in the middle of the night. 

The EEOC now reports that in the same case the court further granted a three-year injunction against the employer, which enjoins it from discriminating against any person on the basis of race or in retaliation for opposing practices unlawful under Title VII; and further requires it to:

1. implement a written anti-discrimination policy;

2. conduct training on Title VII to all employees and to all owners involved in the company's operations;

3. post the anti-discrimination policy and a notice to employees regarding the lawsuit; and

4. provide the EEOC with periodic reports regarding complaints about racial harassment.

An EEOC attorney declared that "We are glad that the court saw fit to enter an injunction in this case.  Among other things, the injunction mandates training for Widenhouse employees and owners involved in the company's operations.  Education is the first step toward preventing racial harassment."

We commented earlier that some employers, besides tolerating discrimination and harassment, seem to want to wave a large red flag in front of the EEOC.  What happens then?  It pays through through the nose, has a federal court injunction governing its workplace for three years, and has to report to an overseeing EEOC for three years.   Oh, and yes, it suffers in the market from an appalled public which can hardly believe what happened.

See our earlier blogs:

On October 2, 2012, we quoted an EEOC attorney as stating:  "Racial harassment too often continues to occur in today's workplaces while employers intentionally look the other way. A case where the victim received death threats at his home, as we found here, is especially abhorrent and unacceptable. The EEOC will continue to fight against this illegal and uncivilized misconduct."
 

And on December 3, 2012 we asked, apropos another case: "Will employers eventually learn that these [acts and slurs] are offensive and discriminatory, and will lead to EEOC crackdowns and monetary awards?"   We can now add to this list of sanctions jury awards of substantial punitive damages.   There are enough meritless discrimination claims brought these days that bedevil employers -- racism such as exhibited in this case cannot be tolerated.   

.

• Print
• Comments
• Trackbacks
• Share Link

This is what management of Florida’s Prestige Transportation Service allegedly told its HR manager with respect to hiring African-Americans, according to a newly filed EEOC Title VII class action lawsuit. The EEOC claims that the company refused to hire African-Americans.

The complaint alleges, among other things, that management also regularly told its HR manager that it would be a "waste of paper" to give African-Americans employment applications and advised her not to do so. 

Assuming that these claims are true, it is not often these days that in the hiring process such blatantly discriminatory (as opposed to hostile or harassing) acts or comments occur with such brazen openness, and then go on to become court cases.  I guess that in some ironic way this may be considered a measure of progress.

• Print
• Comments
• Trackbacks
• Share Link

What do you need to do to wave a large red flag in front of the EEOC?  Well, for one you can tolerate or ignore, or worse condone, the use of the N-Word and nooses in the workplace.  We, jaded as we are, who think that we have seen or heard it all, are still shocked when egregious racial claims of this type are filed. Indeed, we tend to write about each such case brought by the EEOC.

Now comes news that a North Carolina federal jury, “acting as the conscience of this community,” according to the EEOC, has just awarded $200,000 in compensatory and punitive damages against a trucking company on behalf of two former African-American truck drivers who were repeatedly subjected to such racist abuse.  

One driver was repeatedly subjected to slurs by his supervisor and other employees such as "n----r,"  "monkey" and "boy," was asked by a white co-worker if he wanted to be the "coon" in  their "coon hunt," and had a co-worker come to him with a noose saying "This is for you.  Do you want to hang  from the family tree?" 

The second driver claimed that the company's general manager told him, when he was the only African-American employee, that he was the company's "token black," told him “Don't find a noose with your name on it," and spoke to him of having some of his "friends" visit the driver in the middle of the night. 

On October 2, 2012, we quoted an EEOC attorney as stating:  "Racial harassment too often continues to occur in today's workplaces while employers intentionally look the other way. A case where the victim received death threats at his home, as we found here, is especially abhorrent and unacceptable. The EEOC will continue to fight against this illegal and uncivilized misconduct."
 

And on December 3, 2012 we asked, apropos another case: "Will employers eventually learn that these [acts and slurs] are offensive and discriminatory, and will lead to EEOC crackdowns and monetary awards?"   We can now add to this list of sanctions jury awards of substantial punitive damages.   There are enough meritless discrimination claims brought these days that bedevil employers -- racism such as exhibited in this case cannot be tolerated.   

• Print
• Comments
• Trackbacks
• Share Link

Just when we thought that we had had enough of racist epithets and nooses in the workplace, along come two settlements of EEOC lawsuits that illustrate just how virulent and ubiquitous racism still is in the US workplace.

First, the EEOC just announced  a settlement with an Atlanta manufacturer, which will pay $500,000 to 14 employees to settle a racially hostile environment lawsuit.  The suit alleged that graffiti and comments were directed at African-American employees, which included "KKK," swastikas, Confederate flags, "white power" and "die, n----r, die."   Hangman's nooses were displayed, several employees were called "n----r," one by his supervisor who later found a noose at his work station. 

Second,according to the EEOC, a California trucking company and an earthmoving farming company have agreed to a settlement of $30,000 to an African-American driver and his white co-worker based upon a claim of racial harassment.  The dispatcher allegedly called the African-American driver racial epithets such as "gorilla," "porch monkey," and the famous and oft-used N-word.
 

Two weeks ago we wearily discussed yet another case where the “N-word” was used, and where the ubiquitous image of a noose showed up. These are regular appearances in cases of hostile work environment based upon racial harassment. We cited a decision where a court stated that the frequent use of the “N-word” and racial jokes was "constitutionally offensive in any setting … No reasonable jury could find that a reasonable African-American would not be offended by this conduct." 
 

Two EEOC attorneys summed up the egregiousness of the first  case. One said that: "Racism in any form is bad enough, but racist graffiti that included Confederate flags and death wishes accompanied by vile racist epithets go far beyond the pale even of prejudice. Terms like 'KKK' evoke violent and threatening attitudes towards African-Americans.” 

A second attorney said that "This case demonstrates racism at its most hateful level. The violations in this case are especially odious in light of the multiple reports of racist graffiti made by numerous employees.” 
 

Will employers eventually learn that these are offensive and discriminatory, and will lead to EEOC crackdowns and monetary awards?  As an EEOC attorney said:  "Employers that receive notice of racial harassment should take prompt and effective measures to investigate, stop any unlawful conduct, and discipline those found responsible."
 

• Print
• Comments
• Trackbacks
• Share Link

Last month we thought that we had capped a whole series of blogs about the “N-word” and the image of a noose which appear regularly in cases of hostile work environment based upon racial harassment.  We cited a decision where the Court stated that this frequent use of the “N-word” and racial jokes was "constitutionally offensive in any setting …  No reasonable jury could find that a reasonable African-American would not be offended by this conduct."  

Now comes a somewhat startling decision from an Arkansas federal court where an African American employee was so offended because of frequent and heavy use of the “N-word” in the workplace by co-employees that she complained to management.  So far it sounds like the typical racial harassment case. 

However, the Court called the use of the “N-word” mere “coarse jesting,” and “not used derogatorily at all,” and so “the Court has trouble seeing how an objective person in Plaintiff's position would have found her co-workers’ jesting ‘extreme in nature.’”

What caused this court to hold so differently than the first court?  How could a judge who herself would not even spell out the offensive word (except in a quote in a footnote) and had to write “the N-word” call this usage in thwe workplace simple “jesting.”  

The answer (or sub-text) may be, although the Court downplayed it, that the co-employees who repeatedly used the “N-word” were themselves African American, and that therefore, as the Court said,  “By all appearances, the term was not used derogatorily at all.  It might have offended Plaintiff, but viewed objectively, the language was at most coarse jesting.”  The offending conduct was therefore found not to be severe enough to create a hostile environment.  

It seems unimaginable that while the Court found that the racial epithets “might have offended Plaintiff,” she nonetheless focused instead on the intent of the persons who uttered the word.   They were only "joking." 

Would it not be sexually harassing for a male or female co-employee to make coarse sexist “jokes” repeatedly, offending a woman employee within hearing range?   Can someone who makes such “coarse jokes” be excused if he simply claims to have been kidding?   

By the way, the Court’s only mention of “the word” was relegated to the following footnote: “The comment directed at Plaintiff and one other co-worker happened after the kitchen crew nearly missed getting breakfast out one Sunday. The comment was, according to Plaintiff: ‘I told you niggas we could get this done. I told you we could do this. Y'all my niggas.’”    Is this a "jest?"

The very fact that the judge could not even spell the word highlights the fact that the term is offensive per se -- if uttered by non African Americans would it have been appropriate?  

Anyone find this troubling?  

• Print
• Comments
• Trackbacks
• Share Link

The short answer is “no,” because the employee’s prima facie case of retaliation can be rebutted by showing a legitimate, non-retaliatory reason for the termination.  

As our readers are well aware, retaliation is far easier to prove than any underlying discrimination and that even if the underlying claim of discrimination has no merit, retaliation can still be proved. All that must be shown to make out a claim for retaliation is (1) the employee’s filing of a claim or complaint of discrimination, (2) an “adverse employment action” by the employer, and (3) some causal link between the two.  

A decision coming from a federal court in North Carolina illustrates nicely that in spite of a prima facie showing, an employer can still show that the termination was based upon legitimate, non-retaliatory reasons.  In that case, an African American county transportation planner filed a charge of race discrimination with the EEOC in 2010. He also sent an 81-page letter to the County Manager in which he made comments which caused alarm that he could become violent.  For example, in the letter he said that “The tidal wave is impending … I shall deal with this matter.”

Plaintiff was placed on administrative leave and directed to undergo a fitness for duty evaluation, but was ultimately fired when he cancelled the appointment, did not reschedule it, failed to respond to the County's attempts to contact him by telephone, failed attend a scheduled evaluation and failed to maintain his availability during administrative leave. 

The County did not dispute that plaintiff established a prima facie case of retaliation since he made a complaint about discrimination in his letter and EEOC charge, his firing was an adverse action, and it took place in close temporal proximity to the letter and EEOC charge. However, the County contended that he was fired for legitimate, non-retaliatory reasons – i.e.,  because he cancelled his fitness for duty evaluation, did not reschedule it, and did not remain available as instructed while on administrative leave.

The Court agreed that plaintiff indeed made out a prima facie case of retaliation, and that under the McDonnell Douglas test, the burden then shifted to the County to articulate a legitimate, non-retaliatory reason for the firing, which the Court held that the County did.  Under McDonnell Douglas, plaintiff then was required to show that the County’s articulated reason was a pretext, which plaintiff failed to do.   

Notwithstanding the availability of defenses to a retaliation charge, we still strongly advise an employer to take a “business as usual” approach to a charging or complaining employee, to treat that employee like any other employee, to engage in open, non-intimidating communication with the employee to find common ground while the investigation or litigation is pending, and, of course, to document all decisions and pre and post-complaint performance issues that might result in discipline.

• Print
• Comments
• Trackbacks
• Share Link

Cases which allege hostile work environment based upon racial harassment have been the subject of a number of our blogs recently, in which we have observed the use of the ever-present “N-word” and the image of a noose, or a real noose.
 

Now, the EEOC reports that a federal judge has granted a rare partial summary judgment to the EEOC, which sued a Utah construction company on behalf of three black employees who the Court found were subjected to an objectively hostile work environment.
 

The Court held that defendants’ conduct was "constitutionally offensive in any setting" and that this "is a rare case where there is no dispute as to the pervasiveness of the conduct in question. No reasonable jury could find that a reasonable African-American would not be offended by this conduct."    Moreover, the Court held that the employer’s anti-harassment policy was "unreasonable as a matter of law" because it directed employees to report harassment to their harassing supervisor with no alternative means to bypass that supervisor.
 

What was this racially offensive conduct?   Well, the “N-word” and the noose appear yet again.:
 

-- the site superintendent referred to the employees as "n----rs" or a variation of that word almost every time he spoke to them;
 

-- the superintendent frequently told racial "jokes," such as, "why don't 'n-----s' like trees? Because they are used to hanging from them."
 

-- other employees also told racial "jokes," and several used the term "n----r-rigging" while working there.
 

-- during a meeting for all employees, the HR manager asked employees "not to n----r-rig their jobs."
 

-- one supervisor referred to rap music as a "n----r jig," and told an employee that "there is a difference between n----rs and blacks, Mexicans and spics."

As if echoing our blogs (maybe he reads them!) the EEOC General Counsel was quoted as saying that: "Unfortunately, as several recent EEOC cases such as EEOC v. AA Foundries Inc. (Civ. No. 5:11-cv-792 (W.D. Tex.)), involving the routine racially offensive treatment of African-American employees; EEOC v. WRS Compass (Civ. No. 09-cv-4272 (N.D. Ill.)), involving nooses and the use of the 'N-word'; and EEOC v. Scully (Civ. No. 11-8090 CAS (C.D. Cal.)), also involving the use of the 'N-word'; demonstrate racial harassment is a 21st century workplace problem that our agency must continue to combat (emphasis added)."

One more time we caution employers: let the word out that racially offensive conduct or comments will not be tolerated; maintain a written zero-tolerance policy with appropriate reporting mechanisms and follow it (a bad or discriminatory policy is worse than no policy at all); and train all managers and employees.
 

• Print
• Comments
• Trackbacks
• Share Link

Our blog of September 27th discussed the EEOC’s crackdown on racially hostile work environments, and highlighted the use in many cases of the same racially derogatory words and racist tropes.  We spotlighted a recent federal jury punitive damages award of $200,000 to three former employees of AA Foundries, who claimed that a top company official “used the "N" word” and a superintendent called adult African-American male employees "mother-f---g boys."

Apparently the judge found that this award was insufficient, and the EEOC announced today that on October 9th the judge granted the EEOC's post-trial request for a permanent injunction against future discrimination, stating that he is "convinced that injunctive relief is necessary in this case."  The judge therefore:

-- permanently enjoined AA Foundries from engaging in any employment practice which facilitates, condones, or encourages a hostile work environment based on race, or from engaging in any other employment practice which discriminates on the basis of race;
 

-- ordered that AA Foundries must develop a policy and procedures for handling reports of racial harassment, develop an effective investigation process for all complaints of racial harassment, and distribute a written policy and provide equal employment opportunity training to all employees, including managerial employees; and
 

-- directed that the EEOC monitor compliance with the order.

An EEOC attorney commented on the judge's order by advising employers (and she could have lifted her comments from any number of our blogs):  "Today, the court has affirmed the importance for all employers to have effective policies and procedures in place to prevent discrimination in the workplace. A strong policy, meaningful training and a swift response to complaints are a company's most effective tools for addressing an existing hostile work environment or to prevent one from arising.”

• Print
• Comments
• Trackbacks
• Share Link

Racial slurs and nooses – these have been the subjects of more than one of our recent blogs. Now the EEOC reports an upping of the ante – a late-night threat of death against an employee if he made any more racial harassment complaints against co-workers.
 

The EEOC just announced that it sued MMR Constructors, Inc. in Arkansas, claiming hostile work environment under Title VII because an employee was subjected to racially offensive language, graffiti and death threats by other employees.
 

Once again an EEOC attorney was forced to make a strong statement about race discrimination:

"Racial harassment too often continues to occur in today's workplaces while employers intentionally look the other way. A case where the victim received death threats at his home, as we found here, is especially abhorrent and unacceptable. The EEOC will continue to fight against this illegal and uncivilized misconduct."
 

• Print
• Comments
• Trackbacks
• Share Link

It is extraordinary that the “N-word” and the noose keep reappearing in lawsuits claiming a racially harassing workplace, as we have shown in our recent blogs.

I will mention just one more case just filed by the EEOC in this regard.  It has been alleged that a Reno company, Wedco, Inc., violated Title VII by subjecting a black employee to a visible noose hanging since he began working in 2007, and permitting two white employees to continually ridicule and make derogatory comments to him due to his race, often referring to him as a "n---r." 

These racist comments and the noose are offensive.  But it is also frustrating, at a minimum, that employers permit this type of behavior or are oblivious to it.    
 

• Print
• Comments
• Trackbacks
• Share Link

A new jury verdict and another new lawsuit illustrate that in racially hostile work environment cases the use of the same derogatory words and racist tropes keep popping up.  The same slurs are used, and a noose is displayed. 
 

We blogged yesterday about a new EEOC lawsuit which alleged hostile work environment involving “despicable racial harassment.”  We quoted an EEOC attorney who said that "It is unconscionable that in the 21st century anyone should have to work in a racially hostile environment riddled with highly offensive acts of intimidation simply to earn a decent living."

The EEOC just announced that a federal jury awarded $200,000 in punitive damages to three former employees of AA Foundries, a San Antonio company, who claimed  racial harassment similar to the type experienced by the plaintiff's in the newly-filed lawsuit that we discussed.   In the AA case, a top company plant official “used the "N" word” and a superintendent called adult African-American male employees "mother-f---g boys."   Moreover, after several employees filed relevant charges with the EEOC, a noose was displayed in the workplace.
 

The EEOC also announced the settlement of a suit which alleged that a Mississippi-based company "subjected a black employee to racial harassment, including racial taunts and  insults, and then terminated him in retaliation for his opposition to the misconduct.  The harassment included the display of a noose, and the use of racially derogatory terms by a  supervisor (emphasis added)." 

What could be more obviously discriminatory, horrendous and racist than the use of these same derogatory words or the display of a noose.   The award of punitive damages by an outraged jury is the result of failing to adequately train supervisors and employees, failing to have appropriate employment policies and manuals, and, especially, failing to promulgate and disseminate a “zero tolerance” policy as to any type of workplace harassment.  Once again, employers who somehow think that they are immune from discrimination claims are either just foolish or unaware of what goes on in their workplace,   But have little doubt  --  the EEOC will let them know. 

• Print
• Comments
• Trackbacks
• Share Link

According to an EEOC attorney "It is unconscionable that in the 21st century anyone should have to work in a racially hostile environment riddled with highly offensive acts of intimidation simply to earn a decent living."

What happened? A newly-filed EEOC lawsuit accuses oil drilling companies in Texas of violating Title VII when supervisors and other employees subjected two African-American and a Hispanic worker to a severely racially hostile work environment, and also fired one discrimination victim in retaliation for complaining.

According to the EEOC, the racially hostile work environment consisted of the following”
 

-- Two white supervisors on an oil rig where employees slept and worked called two black workers "n----rs," "black asses," and other racial slurs.
 

-- The supervisors segregated the men's sleeping quarters.
 

-- One supervisor tried to place a black worker's hand on the supervisor's private parts, saying "grab this, boy."
 

-- Two black workers found hangman's nooses on their trucks, and despite reporting the incident to the supervisors, the company did nothing to investigate the matter.
 

-- One of the men quit after a supervisor told him to carry out an unreasonably dangerous assignment or go home. The other worker felt compelled to quit after a supervisor stated during an employee meeting that "n----rs can pick more cotton than whites."
 

- On another oil rig a supervisor called a Hispanic worker a "n-----r" and a "n-----r lover" almost daily for dating a black woman, yelled out that he worked "like a wetback," and threatened repeatedly to "whip [his] ass with a 24 [-inch pipe wrench]." The worker was fired when he reported this to a company superintendant.
 

A second EEOC attorney summed up this case by saying that "Despicable racial harassment like this has no place in the American workplace. It is an affront to our values of fair play and opportunity."

• Print
• Comments
• Trackbacks
• Share Link

A labor situation is coming to a head which involves a strange scenario to the mind of an American. It seems that a South African company known as Woolworths is running an ad seeking only job applicants who are "African Blacks" or "Africans, Coloureds and Indians.”

Now, to an American lawyer, this seems clearly illegal – you cannot advertise that certain races or nationalities need not apply, or that you will only consider certain races or nationalities. And even more strange perhaps, is an ad that favors – not disfavors -- the members of a protected, discriminated-against class to the exclusion of all other applicants. One is left wondering what the nature of these advertised jobs is.
 

However, there is some method to this madness. The South African Employment Equity Act provides that a “designated employer,” i.e., an employer who employs 50 or more employees, must implement affirmative action measures for designated groups to achieve employment equity, and that it is “not unfair discrimination to promote affirmative action consistent with the Act or to prefer or exclude any person on the basis of an inherent job requirement.”

Woolworths’ ad would seem, therefore, to be in accordance with the law, and, indeed, be within the spirit of the law and the country's public policy which favors affirmative action.

Not so fast, says trade union Solidarity, which is starting a public campaign against Woolworths to amend the ad “so that people of all race groups will be considered for the positions.” It seems that the law, while clearly promoting affirmative action, nonetheless prohibits quotas, which Solidarity claims the ads promote.

The Employment Equity Act states that affirmative action measures must include things like identification and elimination of barriers with an adverse impact on designated groups; measures which promote diversity; making reasonable accommodation for people from designated groups; retention, development and training of designated groups (including skills development); and preferential treatment and numerical goals to ensure equitable representation. This excludes quotas (emphasis added).”

The ads here amount to “unfair discrimination,” according to Solidarity, which contend that seeking applications from only a particular racial group is a quota:

"The Employment Equity Act does not make provision for the exclusion of any race as far as applications are concerned. The current advertisements amount to an absolute quota, which the Act explicitly prohibits. The trade union has appealed to Woolworths to revisit its internal affirmative action policy to ensure that it does not discriminate unfairly against current or prospective employees of any race.”

• Print
• Comments
• Trackbacks
• Share Link

In our blog of July 3d, we wrote that the EEOC has an interesting website that provides a “selected list” of pending and resolved lawsuits brought by the EEOC in which racial harassment under Title VII was alleged. We reviewed some of the offensive, vulgar and illegal comments and behavior which the EEOC claims that employees have been subjected to in the workplace.

The EEOC has just issued a press release which announced a $2.75 million settlement of one of those cases, filed against a Tampa-based environmental clean-up company.

The EEOC alleged that seven African-American employees were subjected to a racially hostile work environment which included the display of multiple hangman's nooses, repeated use of the "N-word," less favorable equipment assignments and physical threats from coworkers. Moreover, four white workers who associated with African-American employees were allegedly subjected to a hostile work environment by having the foreman allegedly call one a "n----r lover" and another a "coon lover." They too were allegedly physically threatened.

In a decision on a motion in that case, the Court stated that the employer did not provide any harassment training to employees, did not provide an internal contact number for filing EEO complaints, and did not post its non-discrimination/harassment policy until the day after the noose was discovered.

Gee – wonder if any of this would have happened, with the employer being forced to pay $2,750,000 in settlement, if they had only read our blog!

• Print
• Comments
• Trackbacks
• Share Link

On May 14th we wrote about the concept of “disparate impact” discrimination.  While courts have often held that although a standardized test may be neutral and non-discriminatory on its face, and therefore demonstrate no discriminatory intent, nonetheless the impact of such a test may disproportionately fall upon minorities, and therefore be found to be discriminatory, despite the lack of intent.

We wrote about a good example of “disparate impact” discrimination -- a case filed in Florida by the EEOC against the City of Jacksonville, contending that the City put in place written examinations for the promotion of firefighters to four ranks which have a disproportionately adverse impact on black test takers; that is, they have a “disparate impact” on African-American candidates, and are not job-related or consistent with business necessity.
 

Today we highlight a newly-filed lawsuit that combines allegations of both “disparate impact” and “disparate treatment” discrimination (although the facts and claims in the complaint are somewhat intertwined).  In that case, two applicants for the position of entry level police officer have sued the Pittsburgh police department, alleging that (1) of the 368 police officers the city has hired since 2001, only 14 of them were black; and that (2) the police department illegally considered race when making hiring decisions.

As to “disparate impact,” besides citing the above-referenced statistics, plaintiffs allege that the police hiring process gave “unfair consideration” to factors unrelated to a candidate’s merit, including whether candidates had family or friends in the police force.

As to “disparate treatment,” plaintiffs claim that there were photographs taken of them which were circulated during the final stage of the hiring process, by which the police department was able to consider race in making the final, unappealable hiring selection. Plaintiffs claim that despite their passing background, physical fitness, drug and reading tests, they were passed over for hiring in favor of several applicants below them on the list. They contend that “There was no objective, merit-based reason” why they were not hired.

The police department has, of course, not as yet had the opportunity to respond to the suit.

• Print
• Comments
• Trackbacks
• Share Link

On May 14^th we blogged about “disparate impact” discrimination by highlighting a recent case in which the EEOC sued the City of Jacksonville contending that it’s written examinations for the promotion of firefighters had a disproportionately adverse impact on black test takers, and were not job-related or consistent with business necessity.

Yesterday, a federal appeals court in New York ruled that although firefighter examinations in Buffalo, New York for lieutenant candidates had a disparate impact on black firefighters (black applicants had a significantly lower pass rate than white candidates), nonetheless the examinations were, in fact, “job related and consistent with business necessity."

The black candidates had sued alleging that the City of Buffalo had used a statewide New York State Civil Service Department analysis as to which skills and other attributes should be tested, but that there was little or no analysis as to the skills and other attributes that should be tested specific to Buffalo.   The lower court had previously held that that there indeed was a disparate impact, but that “[s]ubstantial empirical evidence, reinforced by expert review and jurisdictional comparisons, showed that fire lieutenants across New York performed the same critical tasks and required the same critical skills, regardless of the location and size of their departments.”   

The appeals court was required to decide the question: “Can an employer show that promotional examinations having a disparate impact on a protected class are job related and supported by business necessity when the job analysis that produced the test relied on data not specific to the employer at issue? (emphasis added).” 

It held that:

 “Where, as here, the district court hears extensive evidence as to how an independent state agency (1) determined, based on empirical, expert, and anecdotal evidence drawn from fire departments across New York and the nation, that the job of fire lieutenant, wherever performed, involves common tasks requiring essentially the same skills, knowledge, abilities, and personal characteristics; and (2) developed a general test based on those findings, we conclude that the district court had sufficient evidence to make a preponderance finding that Buffalo's use of that test to promote firefighters to the rank of fire lieutenant was job related and consistent with business necessity (emphasis added.)”

This is a good example of a disparate impact case, and an example of a situation where in spite of a finding that a test disparately impacts a protected class, the municipality successfully demonstrated a defense of job relatedness and business necessity.  It should be noted that this was not an easy case, and that the court decision was not unanimous.  

• Print
• Comments
• Trackbacks
• Share Link

Mail Online has just reported that Mark McCammon, a black “footballer” who filed what appears to be the first race discrimination suit in British soccer, has prevailed before an employment tribunal which held that he was “racially victimised at his former club” and then fired for alleged misconduct.

McCammon told the tribunal that he (and other black players) were “put through hell” at his former club and had been treated differently from white players in the following ways:

    - he was required to come to work in “treacherous” snowy driving conditions, although white players were not.

    - following an injury the club refused to pay for his private medical bills incurred in his effort to regain his fitness, while “a white team-mate was flown to Dubai for treatment by an eminent physiotherapist at the club's expense.”

    - he was treated disparately while injured.

    - he was told not to blog while others were permitted to.

The Dubai-based club chairman called the allegations “malicious and without foundation.”

• Print
• Comments
• Trackbacks
• Share Link

The EEOC has an interesting website that provides a “selected list” of pending and resolved lawsuits brought by the EEOC in which racial harassment is alleged.   A review of the following list provides a quick compendium of some of the offensive, vulgar and illegal comments and behavior which the EEOC claims that employees have been subjected to in the workplace. 

After reading this list, employers might want to sit down and think about instituting training programs for both managers and employees to instill in them a zero-tolerance attitude with respect to harassment, and to sensitize them as to what is offensive and harassing – and illegal.      

The EEOC lawsuits include cases where:

-- managers posted racist imagery and then fired an African-American employee after he complained about a dollar bill which had been defaced such that a noose was around the neck of George Washington, whose face had been blackened, taped to a cooler in restaurant. On the dollar bill were swastikas and the image of a man in a Ku Klux Klan hood.

--  a supervisor subjected an African-American employee to racially offensive comments such as "coon," "gorilla," "porch monkey," and "n----r."    The employee also heard slurs directed at other ethnic groups, including "raghead," "sand n----r" and "wetback."

-- since at least 2003, management officials frequently referred to black drivers as "n----rs," East Indian drivers as "Taliban" and "camel jockey," and a Latino manager as "spic."

--  a supervisor often kicked an African-American employee in the buttocks and frequently tripped him at work, and made racial comments such as "black folks deserve to get shot", "black folks are good at basketball because they can steal and shoot" and "blacks are the worst people in the world."

            --  an employee was subjected to slurs including "n----r," "monkey," and "boy," and was confronted by a co-worker with a noose who said "This is for you. Do you want to hang from the family tree?" A general manager also told the employee “We are going coon hunting, are you going to be the coon?"

Pretty grim picture of workplace race relations.  Employers have their work cut out for them if they want a harassment-free workplace, and wish to avoid expensive and disastrous lawsuits.  

• Print
• Comments
• Trackbacks
• Share Link

A federal appeals court has just ruled in a case arising out of Indiana that “alienage” is not the same thing as “national origin” or "race" when it comes to employment discrimination under Title VII. Title VII prohibits discrimination on the basis of race, color, religion, sex, or national origin, but it is silent as to “alienage” – the status of being an alien. In this new decision, the court held that being fired for being married to an illegal alien does not violate Title VII since “alien” is not the same thing as race or national origin.

In this case, plaintiff, who was employed by a bank, was married to a Mexican national who entered the United States illegally. The couple had a joint bank account at the employer-bank, and the employer discovered that the husband was an illegal alien and became concerned that it may have been illegal for plaintiff to have a joint account with a known undocumented alien. Plaintiff was eventually fired for walking out of a meeting to discuss this matter, and sued the bank under Title VII claiming that she was fired because she was married to a Mexican citizen whose residence in the United States was unauthorized. 

Initially, the court conceded that it had never before decided (and would wait for the appropriate case) “whether discrimination based on the race or national origin of a person’s spouse or partner falls within the protections of Title VII,” but noted that other federal appeals courts (in New York, for example) had decided that Title VII did, in fact, apply in those cases. Nonetheless, the court stated that this issue was immaterial to the decision.

What the court did hold was that “any discrimination that led to [plaintiff’s] firing was not based on [her husband’s] race or national origin, but rather on his status as an alien who lacked permission to be in the country.  Because alienage is not a protected classification under Title VII,” the court ruled that plaintiff did not have a Title VII case. 

The court cited an old Supreme Court case which held that the term “national origin” was limited to “the country from which you or your forebears came.”  Therefore, held the appeals court, “national origin discrimination as defined in Title VII encompasses discrimination based on one’s ancestry, but not discrimination based on citizenship or immigration status.”

• Print
• Comments
• Trackbacks
• Share Link

The EEOC reported some time ago that it had received a record number charges of discrimination for the fiscal year ending 2011 – almost 100,000 nationwide.  The EEOC has just released a report breaking down these charges by number and percentage state by state, and by nature of charge, giving us a good picture of which charges are increasing and which are decreasing, and providing bloggers and pundits with a good platform to speculate wildly but authoritatively about the reasons.   

Lets take two states and compare them – New York and New Jersey.   

New York’s total number of filings with the EEOC increased over the last three years from 3.8% of the total number of US filings to 4.4%, while New Jersey’s filings went down from 1.8% to 1.5%.   What is the reason for this difference in trending?  I have no idea.   Could be that the relevant state agency is New Jersey is more active or employee friendly and therefore receives a greater percentage of charges within the state, or it could be just a statistical anomaly. Or it could be that New Jersey employers are better trained and utilize best practices more often, which might be accounted for by the excellent legal services provided to these employers by my colleagues across the big river.  

Lets compare the types of charges filed.  Charges of sex discrimination made up 32.4% of the filings in New York, while only 28.1% in New Jersey.  However, charges of race discrimination made up only 29.3% of the filings in New York, while in New Jersey the number was 32.5%.      

Retaliation claims in New York made up 40.5% of the charges filed, while in New Jersey, they made up only 27.9%.  This disparity is pretty wide, and unexplainable to me at this point, (Note: the EEOC explained in its report that the numbers add up to more than 100% because many people file charges based upon multiple types of discrimination).

Oh, and GINA charges were zero in both states last year.      

The state by state report makes generally boring reading, but see for yourself.     

• Print
• Comments
• Trackbacks
• Share Link

If you thought that “code words and dog whistles” (see our blog of March 20, 2012) were the only remnants of employment discrimination 50 years after Title VII, listen to this. 

In Menomonie, Wisconsin, the EEOC has just filed a retaliation suit on behalf of an African-American restaurant employee who was terminated soon after he reported blatantly racist drawings posted at his work site.

The taped images included a dollar bill with a noose drawn around the neck of a blackened George Washington, drawn swastikas on the bill, along with a man drawn in a KKK hood.

The suit was just filed so we do not know all sides to this story. 

It is not often easy for management to control the baser discriminatory impulses of employees at work, but it is easier to train managers as to how to avoid retaliatory behavior.        

Read more: http://chippewa.com/news/local/discrimination-suit-lodged-against-menomonie-restaurant/article_7e36e886-7a92-11e1-89b5-001a4bcf887a.html#ixzz1qohgkXJG

• Print
• Comments
• Trackbacks
• Share Link

I know the headline to this post should not be news, but, unfortunately, as we see all too often in our job, employees continually seem to think that they can say things in email that they would never say face to face.

By way of example:  an employee sends an email from his work email to a few friends that contains a joke about an African American and implies that the mother of that person had sex with dogs.  To quote Homer Simpson, "D'oh."

This scenario seems pretty bad already, right?  Let's check out a few additional facts.  The employee who sent the email is one of the top ranking supervisors.  Even worse, right?

Wait -- it gets better.  The African American who is the subject of the joke is that employee's boss.  The email then gets forwarded to the local paper, which then gets picked up by the national news and blogs, including the Huffington Post. 

If you thought to yourself this was your nightmare day, then you have some sympathy for the Ninth Circuit charged with investigating misconduct of the judge who sent the email in question.

That's right.  The employee who engaged in this behavior was the Chief Judge for the District of Montana.   The African American who was the target of the joke?  President Obama.

In previous posts, we asked if you could pass the "acid test," which included training employees on your anti-harassment policies.  A key thing to remember is that all employees must be trained.  It is especially important to train the highest levels of management and owners as no one can be exempt from the policy.

• Print
• Comments
• Trackbacks
• Share Link