Bloomberg BNA is out with a news story about a recent case filed in federal court in Georgia, which poses an interesting question:  does Title VII protect an employee on the basis of his or her spouse being a member of a different race from the employee?  Among the Circuit Courts of Appeals that have tackled this question, the answer is yes.  We’ll get to the reason why momentarily, but first, let’s take a look at the new case in Georgia:

Costco Wholesale Corp. permitted discrimination and harassment of a black female worker married to a white man, according to a federal lawsuit filed in Georgia . . .

Levara Speight brought associational discrimination claims under Title VII of the 1964 Civil Rights Act and the Civil Rights Act of 1866 (42 U.S.C. § 1981) against Costco, in addition to race bias, harassment and retaliation claims.

She alleged that a supervisor and a co-worker, who are both black, began to harass her after they discovered that her husband is white. She claimed that she was told, “You’re not black,” that she acted “like a 16-year-old white girl,” and that she liked “white people music,” such as Billy Joel. Speight, a pharmacy technician, said she was demoted to a cashier position after she complained about the harassment.

 

This kind of claim is known as associational race discrimination and is based on a quite simple concept.  A claim of this kind is premised on the idea that discriminating against an employee because the employee’s spouse is of a different race necessarily implicates the employee’s own race. Here, the plaintiff is arguing that she was subjected to race-based harassment because of her interracial association, in that she (an African-American woman) is married to a man of a different race (Caucasian).  Thus, the discrimination is necessarily based on her own race, in addition to that of her husband.  (If this concept sounds familiar, you may have read about it in the context of LGBT employees pursuing sex discrimination claims.)

While claims of this sort are not particularly common, they can be viable, depending on the circumstances.  Associational race discrimination cases also raise an important follow-up question:  what kind of association is required to support a claim?  While spousal relationships have been recognized as sufficient by courts that have considered the issue, the limits of an associational relationship remain an open question in many jurisdictions.

To learn more about this case and this type of claim, I encourage you to read the whole article, for which (shameless plug alert) I provided commentary.

This week the country was rocked by headlines of campus unrest at the University of Missouri that culminated in the resignation of Timothy Wolfe, President of the University System.  Campus-wide demonstrations alleging that Wolfe properly failed to respond to report of racial bias incidents lead to the Tigers football team refusing to practice (this was likely the tipping point, as a strike on the part of the football team would have caused a seven-figure penalty each Saturday).

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While I would argue that the culture in academia at the moment is hyper volatile and more identity-driven that at any point in my lifetime, the lessons this campus and its former president learned are applicable to organizations of all types.  Like most other things in employment law, an ounce of prevention is worth a pound of a cure.  If the Mizzou administration had been more proactive in a timely, comprehensive response to perceived racial bias on campus, they could have short-circuited the campus unrest and ultimately preserved the organizational structure.

When an employee raises a concern that they believe they are the victims of a hostile work environment, take the allegation seriously and investigate promptly.  Failure to do so can result in later litigation where the failure to investigate will be used by the employee to show racial animus on the part of the company.  And we have seen at the University of Missouri, it can also mean the end of a career for senior executives.

The story of Rachel Dolezal, the recently-deposed head of an NAACP chapter in Spokane, WA, ignited a media firestorm last week with regard to claims that she, a Caucasian, “identified” as an African-American.  Opinions of Ms. Dolezal are passionate and varied, but regardless of one’s opinion of her, she illustrates an important point that New Jersey employers must remember- it is not the employee’s actual race (or sex, national origin, etc.) that matters, but rather what they are perceived to be in deciding whether they fall under a protected discrimination classification.

Let’s take Ms. Dolezal for example:  If she had brought an action against her employer for racial discrimination, she technically could have sued due for discrimination based on her African-American race (if she was perceived by her employer to be African-American) or, in the unusual circumstance of reverse discrimination, for being Caucasian (her actual race).  To wit, it is true that she allegedly sued a former employer in 2002 for discrimination based on her Caucasian race.

The point is that New Jersey discrimination statutes protect individuals for their actual characteristics as well as those which they are perceived to have by their employer.  Keep that in mind when evaluating exposure in the context of discrimination litigation.

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Last week’s post about blatantly discriminatory job ads in New Zealand elicited a number of comments from folks who could not believe that such ads were actually published.  To remind you, these were some of  the ads:

* Young and vibrant waiting staff wanted

* We’re looking for vibrant salespeople with a young, passionate energy

* If you’re a motivated, talented young marketer

* We’re on the hunt for young, fit and competent carpenters for immediate starts

* Young person willing to learn – mechanic technician

Reader Comments

To those of our readers who were surprised — even shocked — at such ads, other readers provided examples from their own practices or corporate experiences which are truly “surprising.”

Read on.

Louise Walker, a Solicitor in Glasgow, UK:

“Helpful article Richard. If an individual has the skills and qualifications required to carry out a job, then their age should not matter. Employers would be well advised to take care when placing adverts to ensure they are not exposing themselves to a claim for discrimination.”

Ed Skinner, an HR expert in the Cincinnati area:

“Amazing … in this day and age! Might as well open the checkbook for a LARGE settlement.   Human Resources Professionals in the United States are less likely to commit that error!”

David Gabor, a Boston attorney:

“Ed, I wish that were true. I recently had a case in which the interview notes contained comments such as “sexy but married….too bad.” “Not my type. Not blond.” “Too skinny” “Pregnant … no way!!!” “Hot and single”

Guess which one got the job? Shortly thereafter she sued for sex harassment. Small wonder.

Worse … Head of HR was in the interviews with the Director!”

Ed Skinner:

“Wow. Bet those two were dropped into HR from some other discipline. Couldn’t have been trained in HR ! I hope. Makes one wonder doesn’t it.”

David Gabor:

“The training received in HR is superior. Sadly, performance does not always follow. Human nature often rears its ugly head.”

Lisa York Bowman, an attorney in Atlanta:

“I recently had a case where the interview notes written on the back of the application were similar to those described by David, despite the superior training that took place within the company.”

Dana Pearl, an EEO/HR consultant in Chicago:

“A client of mine had to fire their plant manager who had attended two of my training programs over a few years, and one of another contractor, because the guy accepted an employee’s offer to ‘service’ him in his car after work.  She turned around and filed a sexual harassment charge. The manager said it was mutually consensual.

Stupid is as stupid does, and no amount of training is going to make someone behave.

hostile workplace : Angry woman makes face behind person over white

I tell my clients that I can ‘lead the horses to water, but can’t make them drink.’ It’s up to the individuals to make the choice to be professional — or not.”

 

For some, Halloweeen is about cute children in adorable costumes.  For others, Halloween conjures up images of witches, ghost, and goblins who, in the words of Shakespeare “Double, double toil and trouble; fire burn and cauldron bubble.”

30992649_sFor others, Halloween is simply about getting the best candy and treats.  For employers, Halloween can be a minefield.

Every year there is no shortage of offensive Halloween costumes.  This year, one of the most offensive ones I saw on Facebook was a child wearing black face dressed as Ray Rice dragging an African American doll by the hair.  Costumes not only take aim at ethnic groups, a lot of them are downright indecent.  If you do not think that is the case, just Google “sexy Halloween costumes.”  I just did and in .35 seconds Google came back with approximately 26,100,000 results.

Halloween can be a fun a holiday and an opportunity for employers to boost employee morale with costume contests.  For example, our office is having a Halloween social where employees’ costumed children and leashed pets are welcome to attend.  But, before allowing employees to dress up or decorate their cubicles, employers should set ground rules regarding permissible costumes and decorations.  Employers should also not hesitate to send home employees who violate those basic ground rules.

 

 

 

We have written before about the EEOC’s announced intent, as per its Strategic Enforcement Plan (“SEP”), to protect “vulnerable” workers.  We said on June 5, 2014: “‘The most vulnerable workers’ — this is a part of the EEOC’s strategic plan for enforcement.  Protecting them, that is, as we noted before – think farm workers, migrant workers, workers in isolated areas, and mentally-challenged Henry’s Turkey workers.”

We wrote about such a case as recently as August 20th.

A new suit filed by the EEOC demonstrates this continued EEOC targeting.

The suit charges that a Maine farm and produce wholesaler maintained a sexually hostile work environment for female farmworkers for many years, with these workers being “groped, repeatedly propositioned for sex and subjected to lewd comments about their bodies by their supervisors and male co-workers.”

farm workers : Female farmer works with manure at field, holding agricultural tools Stock Photo

Despite repeated complaints by the workers, the employer took no action to address the hostile work environment – with one employee ultimately being forced to leave.

Takeaway:  Taken verbatim from the EEOC’s press announcement:

“The lawsuit, one of many similar suits filed by the agency in recent years on behalf of farmworkers, underscores the EEOC’s longstanding nationwide commitment to addressing the plight of these vulnerable workers, who are often reluctant or unable to exercise their rights under the equal employment laws.”

 

The EEOC has just sued a major transportation and distribution services provider from New Jersey for harassment based on race and national origin under Title VII.

This comes after a week of many such racial harassment suits filed by the EEOC.

In this case the EEOC accused company management of using “racial language” such as  “calling African-American employees ‘ass monkeys,’ making comments about blacks swinging through the trees, and describing African-Americans as lazy and dependent on the government. In addition, EEOC alleges, a stuffed monkey was displayed in the workplace and at times had cord or a rope tied around its neck or appeared to be hanging.”

racism : The beautiful female hand, embraces a loop

Discerning readers will note that in this case the “N-word” was apparently not used, contradicting our recent observation that this word is seemingly always present in racial harassment cases.  However, we noted long ago that nooses were often displayed in racial harassment cases — which is allegedly the case here.  Bigots seem to gravitate to the same words and old racist symbols.

One EEOC attorney stated:  “This kind of blatant, racially charged conduct – 50 years after the passage of Title VII – is an unfortunate reminder of why the Civil Rights Act of 1964 was and is so necessary.  No employee should face such utterly unacceptable and patently offensive conduct when he or she comes to work. And it’s an outright violation of federal law — a violation which it is the EEOC’s mandate to remedy.”

According to another EEOC attorney, the company provided no training for its workforce or managers on their obligations under Title VII.  “A complete absence of training on the duty to prevent harassment and discrimination is a recipe for disaster.”

This latter statement is important, since the EEOC apparently feels that with proper workforce training this case may not have arisen.  Perhaps.  But we do agree that lack of a proper policy and procedure manual, lack of training for all employees and managers, lack of an appropriately trained HR manager, and lack of a top down culture of zero tolerance of harassment of any sort is indeed a recipe for disaster.

 

Just when we thought that maybe the N-word — just maybe — had been consigned to the dustbin of employment law history, three new EEOC lawsuits were filed this week in which this word was used against black employees.  See yesterday’s post for a description of the first such suit, and one court’s holding that using the N-word once does not make out a claim for racial harassment.

In a second suit, the EEOC clams that a member of a Huddle House restaurant management team subjected one of its female shift leaders in Arkansas to racially offensive language, such as “ghetto,” “hood,” “hood rat,” “Huddle ho’s” and — the “N-word.”

discrimination people: Frustrated woman leaning her head against a wall Stock Photo

And in a third suit, the EEOC alleged that the general manager of an Ohio management company subjected a class of employees to a racially hostile environment, and retaliated against an employee for complaining.

The EEOC claims that the general manager “frequently called black employees names such as “n—-r”, “ho’,” and “black bitch,” and deprived African-American employees of equal terms and conditions of employment, such as regularly allowing white employees more breaks than black employees and disciplining blacks for coming in late while relaxing the same rules for whites.”

As we have noted before, whenever offensive racial slurs are uttered in the workplace against black employees, its seems that the N-word is always among the slurs.   Always.

An EEOC attorney said that “We recently celebrated the 50th anniversary of the Civil Rights Act of 1964, yet employees continue to fight for dignity and respect in the workplace. Employees should not have to endure a racially hostile work environment to earn a living. The EEOC remains committed to eradicating discrimination in the workplace.”

Fifty years later — when will it end?  What will it take?

 

Last June a federal court held that the single use of the “N-word” was not enough to create a hostile workplace.  This is not the first court to so hold — but not every court agrees.

racism concept : globe, concept of Racism

A black replacement janitor claimed that he was subjected to race-based harassment by co-workers who called him “boy,” “black n—-r,” and treated him harshly.  The Court held that the “hostile work environment claim fails because he did not provide sufficient evidence for a reasonable juror to conclude that he was subjected to harassing conduct that was severe or pervasive.”

Although “[o]ne instance of conduct that is sufficiently severe may be enough,” the Court ruled that “[w]e have stated that while there is no “magic number of slurs” that indicates a hostile work environment, an “unambiguously racial epithet falls on the ‘more severe’ end of the spectrum.”

However, the court said that “one utterance of the N-word has not generally been held to be severe enough to rise to the level of establishing liability.”

The court issued the now standard disclaimer when the “N-word” is used and the court holds that no hostile environment was created:  “However, while referring to colleagues with such disrespectful language is deplorable and has no place in the workforce, one utterance of the n-word has not generally been held to be severe enough to rise to the level of establishing liability.”

One utterance of the “N-word” is not enough?   Not according to another federal court which found the word so offensive as to be “severe” enough to make out a hostile workplace.

In the past we discussed the issue of “how many” – i.e., how many times an employee must endure a crude and offensive racial or other epithet for the situation to become a hostile work environment?   We know that the federal test for a hostile work environment is, in sum, that the epithets must either be severe or pervasive.  See one of our discussions from earlier in the year.

On May 24, 2013, we wrote that a federal appeals court in Washington, DC held that a single use of the “N-word” was enough to make out a hostile work environment because it is a racial epithet that is “deeply offensive.”   The Court stated that “perhaps no single act can more quickly alter the conditions of employment” than “the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor.”

In that case the African-American employee, when given a promotion without a raise, was allegedly told “For a young black man smart like you, we are happy to have your expertise; I think I’m already paying you a lot of money.” Given this backdrop, the Court held that when a VP allegedly later told him to “get out of my office nigger,” this latter statement (if indeed made) was severe enough to, in and of itself, be considered a hostile work environment.

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Its been awhile since we have seen a new lawsuit in which the “N-word” was used: but now the EEOC has accommodated us.  It has just sued a South Carolina-based metal finishing company for subjecting an employee to months of being called the “N-word” by two white employees and then firing him when he complained.

Let’s see what the Court does with this one.

 

Yesterday we wrote about the new race discrimination law in the Channel Island of Jersey.  Today, we note a report from the BBC News Guernsey that the Channel Island of Guernsey is “years away” from pasing such a law because it has decided to “prioritise disability discrimination laws.”

Huh?   Passage of an anti-discrimination law — decades after other countries have done so — is so complex or time-consuming in Guernsey that only one can be passed every number of years?

confusion : Young man with confused expression on face Stock Photo

In the clear and unambiguous words of  the island’s chief minister, “a law in itself isn’t going to be the panacea that changes attitudes.  We must be realistic about this; we’ve all got a responsibility that when we come across this we need to challenge it in a civil way and feel empowered to do so.”

That settles that!   Anyone listening?

deaf : dog listening with big ear

To clear up any other misunderstandings, the minister stated that “It’s a priority, but at the moment not our number one priority. Generally speaking Guernsey is a civil society and people realise they can’t act in that way.  But we know there are incidents where that does happen and as a result we will in the end need to legislate… but we have to cut our cloth effectively.”

Huh?

politicians : illustration of office worker with a big question

One local advocate “said she had experienced racism first-hand with a shop assistant refusing to serve or even acknowledge her due to the colour of her skin when she arrived in 10 years ago. She said attitudes had changed during that time, but needed to change further and this needed to be backed up by the law.”

Maybe someday …

race discrimination : Frustrated woman leaning her head against a wall Stock Photo