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.