This page contains entries under the topic: "Discrimination - Race" | Main
$5 million EEOC consent decree: Employer complies
February 22, 2010 by Ross Runkel at LawMemo
A federal district court has lifted a consent decree, finding that Woodward Governor Co has complied.
The decree resulted in $5 million being distributed to minority and female employees.
The decree also required that Woodward use a psychologist to analyze jobs, develop written job descriptions, a performance appraisal, and compensation review process.
Woodward was required to review the job assignments of its current production employees and adjust them as necessary based on the new job descriptions.
$400,000 race discrimination settlement
February 22, 2010 by Ross Runkel at LawMemo
EEOC and Big Lots have settled a race discrimination suit for $400,000.
EEOC claimed that the company subjected a black maintenance mechanic and other black employees to race harassment and discrimination.
The $400,000 will be paid to at least five employees along with a group of unidentified class members.
OFCCP ALJ finds race discrimination by Bank of America
February 07, 2010 by Ross Runkel at LawMemo
An OFCCP ALJ has issued a recommended ruling that Bank of America discriminated against African-American job applicants for entry level positions in Charlotte, NC, in 1993 and from 2002 to 2005.
Next: A hearing to determine what remedies should be provided by the bank.
DOL Press release 02/02/2010:
Following US Labor Department investigation, administrative law judge finds Bank of America discriminated against African-American job applicantsWASHINGTON — A protracted case that started with a U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP) investigation has resulted in an administrative law judge's (ALJ) recommended ruling that Bank of America discriminated against African-American job applicants for entry level positions in Charlotte, N.C., in 1993 and from 2002 to 2005.
"The Labor Department is committed to ensuring that all workers — including African-Americans — are treated fairly by federal contractors in decisions concerning hiring, promotion and compensation," said OFCCP Director Patricia A. Shiu. "Further, contractors cannot use litigation as a means to obstruct OFCCP's ability to conduct its authorized investigations and pursue relief for victims of discrimination."
The ruling by ALJ Linda Chapman arises in a case that began in 1993 when OFCCP requested information from NationsBank (the bank's previous name) as part of a compliance review to determine if the bank, as a federal government contractor, treated its employees without discrimination as required by Executive Order 11246. After OFCCP advised the bank in 1995 of its findings of discrimination, the bank challenged — in federal court — OFCCP's authority to conduct the review as a violation of the bank's Fourth Amendment rights. After the challenge failed and Labor Department attorneys filed an administrative complaint, the bank pursued that challenge in the administrative forum. The department's Administrative Review Board ruled in 2003 that if the bank had consented to the review, there was no Fourth Amendment violation. The ALJ subsequently held that the bank had, in fact, consented, and department attorneys were able to address the discrimination claims.
After that hearing, ALJ Chapman held that the bank intentionally discriminated against African-American clerical, administrative and teller applicants at its Charlotte facility. The ALJ also held that the bank's failure to retain records as required by law without justification did not lessen the statistical disparities found by OFCCP's expert. Chapman now will hold a hearing to determine what remedies should be provided by the bank. After the ALJ issues a recommended decision on a remedy, the case will proceed to the department's Administrative Review Board for a final agency decision.
OFCCP enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), 38 U.S.C. 4212, that prohibit employment discrimination by federal contractors. The agency monitors federal contractors to ensure that they provide equal employment opportunities without regard to race, gender, color, religion, national origin, disability or veteran status. Information is available at http://www.dol.gov/ofccp/.
$30 million suit claims discrimination by law firm
January 29, 2010 by Ross Runkel at LawMemo
A former associate of Howrey LLP filed her $30 million race and national origin discrimination suit Wednesday in DC Superior Court.
Kamisha Menns, a black female citizen of Jamaica, had worked in the firm's Brussels office. She claims she was subjected to escalating hostility and discrimination from colleagues, staff and supervisors.
[Article]
$105,000 settles race case
January 25, 2010 by Ross Runkel at LawMemo
EEOC claimed that Memphis Goodwill Industries fired a transportation director in retaliation for reporting alleged race discrimination and because of her race.
The employer agreed to pay the former employee $105,000, purge her personnel file of negative disciplinary actions, and provide her with a reference agreed to by the parties.
Federal court grants relief to New York firefighters
January 25, 2010 by Ross Runkel at LawMemo
Two weeks ago the Eastern District of New York held that New York City violated Title VII (intentional pattern of discrimination) through the use of written examinations to screen and rank firefighter applicants. [Order]
Now the court has issued its remedial order, designed to remedy discrimination against black and Hispanic applicants.
The complex order affects about 7,400 minority applicants who took the tests, requires that 293 applicants be given priority hiring status and retroactive seniority, and provides for monetary and other relief.
$250,000 and reinstatement settles race case
January 22, 2010 by Ross Runkel at LawMemo
EEOC claimed that Conmed Linvatec discharged an employee because of his race.
The company has agreed to pay the employee $250,000 and reinstate him to his former position.
DOJ claims state's promotion exam violates Title VII
January 13, 2010 by Ross Runkel at LawMemo
The Justice Department has sued the State of New Jersey and the New Jersey Civil Service Commission alleging a pattern or practice of employment discrimination against African-Americans and Hispanics.
The complaint claims that a written examination for promotion to the rank of police sergeant has a disparate impact on African-Americans and Hispanics, and that the exam is not job related and consistent with business necessity.
$85,000 settles race discrimination and retaliation case
January 11, 2010 by Ross Runkel at LawMemo
EEOC charged that a Chevrolet dealership subjected a class of African Americans to different terms and conditions of employment and a hostile work environment on the basis of race.
Alleged conduct included racial epithets, such as repeated use of the N-word, and also involved management making sales team assignments based upon race, and withholding wages from one of the individuals after he complained.
$300,000 settles race discrimination suit
January 08, 2010 by Ross Runkel at LawMemo
EEOC claimed that Vanguard Group refused hire an applicant for a financial planning manager position because of her race, and hired a less qualified white applicant.
The suit settled for $300,000 and other relief.
$1,073,261 judgment in sex and race discrimination case
December 30, 2009 by Ross Runkel at LawMemo
EEOC sued claiming that Whirlpool Corporation failed to protect a black female employee from persistent harassment by a white male coworker, which ultimately resulted in her being physically assaulted by him.
Following a bench trial, a federal district court awarded the employee $773,261 in back pay and front pay, and $300,000 in compensatory damages.
$60,000 settles disability and race discrimination suit
December 28, 2009 by Ross Runkel at LawMemo
EEOC claimed an employer discriminated against a black employee when it sent her for a drug screen when she experienced symptoms of diabetes at work, then discharged her after she passed the test.
EEOC claimed the decision to require the drug screen was based on the fact she is African American, and the discharge was because of her disability (insulin-dependent diabetes) and her race.
$8.9 million settles three EEOC suits
December 16, 2009 by Ross Runkel at LawMemo
Albertsons, LLC, a national grocery chain, will pay $8.9 million to settle three employment discrimination lawsuits filed by the EEOC.
The suits involved claims of retaliation and race, color and national origin discrimination and harassment.
EEOC claims racially hostile workplace
December 14, 2009 by Ross Runkel at LawMemo
EEOC sued a freight hauling company Thursday claiming black employees were subjected to hangman’s nooses, racist graffiti, racist comments, and unequal treatment in discipline and work assignments.
City violated Title VII by discarding racially disproportionate test results (5-4)
June 29, 2009 by Ross Runkel at LawMemo
Today the US Supreme Court decided Ricci v. DeStefano (US Supreme Court 06/29/2009)
The New Haven, Connecticut fire department administered civil service tests for applicants for positions as captain and lieutenant. The examination resulted in disproportionately higher scores for white applicants than for minority applicants. The department decided not to implement the exam results for fear that doing so would put them in violation of Title VII. Therefore, positions remained unfilled. A group of white and Hispanic applicants sued claiming a violation of Title VII and of the equal protection clause. The trial court granted summary judgment for the defendants, and the 2nd Circuit affirmed.
The US Supreme Court reversed, holding that the City’s action in discarding the tests violated Title VII.
Official Syllabus:
New Haven, Conn. (City), uses objective examinations to identify those firefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City threw out the results based on the statistical racial disparity. Petitioners, white and Hispanic firefighters who passed the exams but were denied a chance at promotions by the City’s refusal to certify the test results, sued the City and respondent officials, alleging that discarding the test results discriminated against them based on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. The defendants responded that had they certified the test results, they could have faced Title VII liability for adopting a practice having a disparate impact on minority firefighters. The District Court granted summary judgment for the defendants, and the Second Circuit affirmed.Held: The City’s action in discarding the tests violated Title VII.
(a) Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin, 42 U. S. C. §2000e–2(a)(1) (disparate treatment), as well as policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities, §2000e–2(k)(1)(A)(i) (disparate impact). Once a plaintiff has established a prima facie case of disparate impace, the employer may defend by demonstrating that its policy or practice is "job related for the position in question and consistent with business necessity." Ibid. If the employer meets that burden, the plaintiff may still succeed by showing that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e–2(k)(1)(A)(ii) and (C).
(b) Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. The Court’s analysis begins with the premise that the City’s actions would violate Title VII’s disparate-treatment prohibition absent some valid defense. All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decisionmaking is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. The Court has considered cases similar to the present litigation, but in the context of the Fourteenth Amendment’s Equal Protection Clause. Such cases can provide helpful guidance in this statutory context. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 993. In those cases, the Court held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a "strong basis in evidence" that the remedial actions were necessary. Richmond v. J. A. Croson Co., 488 U. S. 469, 500; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267,
277. In announcing the strong-basis-in-evidence standard, the Wygant plurality recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. 476 U. S., at 277. It reasoned that "[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees." Ibid. The same interests are at work in the interplay between Title VII’s disparate-treatment and disparate-impact provisions. Applying the strong-basis-in-evidence standard to Title VII gives effect to both provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. It also allows the disparate-impact prohibition to work in a manner that is consistent with other Title VII provisions, including the prohibition on adjusting employment-related test scores based on race, see §2000e–2(l), and the section that expressly protects bona fide promotional exams, see §2000e–2(h). Thus, the Court adopts the strong-basis-in evidence standard as a matter of statutory construction in order to resolve any conflict between Title VII’s disparate-treatment and disparate-impact provisions.(c) The City’s race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard.
(i) The racial adverse impact in this litigation was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. The problem for respondents is that such a prima facie case—essentially, a threshold showing of a significant statistical disparity, Connecticut v. Teal, 457 U. S. 440, 446, and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the test results. That is because the City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. §§2000e–2(k)(1)(A), (C). Based on the record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect.
(ii) The City’s assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record, which demonstrates the detailed steps taken to develop and administer the tests and the painstaking analyses of the questions asked to assure their relevance to the captain and lieutenant positions. The testimony also shows that complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams’ validity.
(iii) Respondents also lack a strong basis in evidence showing an equally valid, less discriminatory testing alternative that the City, by certifying the test results, would necessarily have refused to adopt. Respondents’ three arguments to the contrary all fail. First, respondents refer to testimony that a different composite-score calculation would have allowed the City to consider black candidates for then open positions, but they have produced no evidence to show that the candidate weighting actually used was indeed arbitrary, or that the different weighting would be an equally valid way to determine whether candidates are qualified for promotions. Second, respondents argue that the City could have adopted a different interpretation of its charter provision limiting promotions to the highest scoring applicants, and that the interpretation would have produced less discriminatory results; but respondents’ approach would have violated Title VII’s prohibition of race-based adjustment of test results, §2000e–2(l). Third, testimony asserting that the use of an assessment center to evaluate candidates’ behavior in typical job tasks would have had less adverse impact than written exams does not aid respondents, as it is contradicted by other statements in the record indicating that the City could not have used assessment centers for the exams at issue. Especially when it is noted that the strong-basis in-evidence standard applies to this case, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record.
(iv) Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.530 F. 3d 87, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a concurring opinion. ALITO, J., filed a concurring opinion, in which SCALIA and THOMAS, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.
Supreme Court transcript in employment discrimination case
April 22, 2009 by Ross Runkel at LawMemo
Today the US Supreme Court heard oral arguments in Ricci v. DeStefano [details, briefs].
The official transcript of the oral argument is here.
The New Haven, Connecticut fire department administered civil service tests for applicants for positions as captain and lieutenant. The examination resulted in disproportionately higher scores for white applicants than for minority applicants. The department decided not to implement the exam results for fear that doing so would put them in violation of Title VII. Therefore, positions remained unfilled.
A group of white and Hispanic applicants sued claiming a violation of Title VII and of the equal protection clause. The trial court granted summary judgment for the defendants, and the 2nd Circuit affirmed. The US Supreme Court granted certiorari to review the 2nd Circuit judgment, and heard oral arguments on April 22.
Study finds (well, duh) racial bias in the advertising industry
January 14, 2009 by Ross Runkel at LawMemo
Probably no industry in the United States is free from racial bias. Yet a recent study indicates that the advertising industry really has a long way to go.
In NEW DATA EXPOSES DRAMATIC RACIAL DISCRIMINATION IN U.S. ADVERTISING INDUSTRY the NAACP summarizes the whole story. [Read the full study]
Specific findings include:
Black college graduates working in advertising earn $.80 for every dollar earned by their equally-qualified White counterparts;Based on national demographic data, 9.6 percent of advertising managers and professionals should be African-Americans. The actual percentage in 2008 is 5.3 percent, representing a difference of 7,200 executive-level jobs;
About 16 percent of large advertising firms employ no black managers or professionals, a rate 60 percent higher than in the overall labor market;
Black managers and professionals in the industry are only one-tenth as likely as their White counterparts to earn $100,000 a year;
Blacks are only 62 percent as likely as their white counterparts to work in the powerful “creative” and “client contact” functions in advertising agencies;
Eliminating the industry’s current black-white employment gap would require tripling its Black managers and professionals.
US Supreme Court takes Title VII case on municipality's refusal to implement promotion exam results
January 09, 2009 by Ross Runkel at LawMemo
Ricci v. DeStefano (07-1428 and 08-328)
Certiorari granted January 9, 2009
Details, briefs: http://www.lawmemo.com/supreme/case/Ricci/
The New Haven, Connecticut fire department administered civil service tests for applicants for positions as captain and lieutenant. The examination resulted in disproportionately higher scores for white applicants than for minority applicants. The department decided not to implement the exam results for fear that doing so would put them in violation of Title VII. Therefore, positions remained unfilled.
A group of white and Hispanic applicants sued claiming a violation of Title VII and of the equal protection clause. The trial court granted summary judgment for the defendants, and the 2nd Circuit affirmed.
Two petitions for certiorari were filed. Both were granted.
Questions presented in 07-1428:
This case presents recurring issues regarding proper application of Title VII and the Equal Protection Clause to the civil service. Petitioners, New Haven fire fighters and lieutenants, qualified for promotion to command positions pursuant to jobrelated examinations and merit selection rules mandated by local law. Citing the race of the successful candidates and Title VII's "disparate impact" provision, city officials refused to promote the petitioners.
1. When an otherwise valid civil service selection process yields unintended racially disproportionate results, may municipalities reject the results and the successful candidates for reasons of race absent the demonstration required by 42 U.S.C. §2000e-2(k)?
2. Does 42 U.S.C. §2000e-2(1) which makes it unlawful for employers "to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race ... ," permit employers to refuse to act on the results of such tests for reasons of race?
3. If, citing the public interest in eradicating political patronage, racism and corruption in civil service, a state's highest court mandates strict compliance with local laws requiring race-blind competitive merit selection procedures, does 42 U.S.C. §2000e-7 permit federal courts to relieve municipalities from compliance with such laws?
Questions presented in 08-328:
This case presents the question whether Title VII and the Equal Protection Clause allow a government employer to reject the results of a civil-service selection process because it does not like the racial distribution of the results. Specifically:
1. When a content-valid civil-service examination and race-neutral selection process yield unintended racially disproportionate results, do a municipality and its officials racially discriminate in violation of the Equal Protection Clause or Title VII when they reject the results and the successful candidates to achieve racial proportionality in candidates selected?
2. Does an employer violate 42 U.S.C. §2000e-2(/), which makes it unlawful for employers "to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race," when it rejects the results of such tests because of the race of the successful candidates?
Punitive damages without an award of compensatory damages.
January 03, 2008 by Ross Runkel at LawMemo
Abner v. The Kansas City So RR (5th Cir 01/02/2008)
Eight African American employees sued claiming a work environment hostile to race, in violation of Title VII and 42 USC 1981. A jury returned a verdict finding the employer liable, awarded no compensatory damages, and awarded $125,000 in punitive damages. The 5th Circuit affirmed.
The evidence, which extended over a ten year period, indicated that the employees were subjected to racial graffiti, a noose hanging outside a door, racially derogatory comments, and discriminatory assignments. The jury found that supervisors caused and/or failed to properly respond to this racially derogatory behavior.
(1) The court held that a punitive damages award under Title VII and Section 1981 need not be accompanied by compensatory damages. This was based on the "plain language" of the statute, the legislative history, and the purpose of punitive damages. Any concern about unbounded jury discretion is directly addressed by the statutory cap on punitive damages. Due to the statutory cap, it is not necessary for a trial court to award "ceremonial" nominal damages of $1 to each plaintiff.
(2) The court rejected the employer's argument that an award of punitive damages violates due process under the test in BMW of North America v. Gore, 517 US 559 (1996), saying that "the three-factor Gore analysis is relevant only if the statutory cap itself offends due process." As with cases in which punitive damages accompany nominal damages, "a ratio-based inquiry becomes irrelevant."
(3) The court held that it was proper to allow the plaintiffs to testify about conduct over a ten year period. National Railroad Passenger Corp v. Morgan, 536 US 101 (2002) said that if "an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered." To the extent that there was testimony outside of the ten year period, it did not cause prejudicial error.
2.5 MILLION for harrassing one employee
January 03, 2008 by Ross Runkel at LawMemo
Here's the EEOC press release:
EEOC Says African American Electrician Subjected to ‘N-Word’ and Threats of Lynching at Worksites Across the Country
HONOLULU -- The U.S Equal Employment Opportunity Commission (EEOC) today announced a major settlement of a race discrimination and retaliation lawsuit against Lockheed Martin, the world’s largest military contractor, for $2,500,000 and other relief on behalf of an African American electrician who was subjected to a racially hostile work environment at several job sites nationwide – including threats of lynching and the “N-word.”
The monetary relief for former Lockheed employee Charles Daniels is the largest amount ever obtained by the EEOC for a single person in a race discrimination case, and one of the largest amounts recovered for an individual in any litigation settlement by the agency. Additionally, the Bethesda, Md.-based company agreed to terminate the harassers and make significant policy changes to address any future discrimination, the EEOC said at a press conference in Hawaii.
The EEOC’s suit, filed in August 2005, alleged that Daniels was subjected to severe racial harassment while working on military aircrafts as part of a field service team in Jacksonville, Fla., Whidbey Island, Wash., and Oah’u, Hawaii. The EEOC charged that Daniels was the target of persistent verbal abuse by coworkers and a supervisor whose racial slurs and offensive language included calling him the “N-word” and saying “we should do to blacks what Hitler did to the Jews” and “if the South had won then this would be a better country.” Daniels was also subjected to multiple physical threats, such as lynching and other death threats after he reported the harassment. Despite its legal obligations, Lockheed failed to discipline the harassers and instead allowed the discrimination against Daniels to continue unabated – even though the company was aware of the unlawful conduct.
Commenting on the settlement, Daniels said: “As an armed forces veteran who swore to defend the rights and interest of Americans around the globe, I find it sad that the U.S. government had to sue its largest defense contractor Lockheed Martin -- whose slogan is ‘We never forget who we’re working for’ -- to protect my rights here at home!”
Daniels added, “I am pleased that we stood up for justice, because it should help all hard-working Americans of every race and gender to know that we have rights and protections guaranteed under the laws of this nation.”
EEOC Regional Attorney William Tamayo said, “This is a very good resolution because Lockheed Martin agreed to terminate and permanently bar Daniel’s harassers from employment. It sends a powerful message that racism cannot and must not be tolerated.”
Raymond Cheung, the EEOC attorney who led the government’s litigation effort, added, “To combat the harassment and threats faced by Mr. Daniels is at the heart of why the EEOC was created. Despite concerns of retaliation, this man had the courage to stand up and make public what happened to him, in an effort to ensure that it would not happen to anyone else. It has been a once-in-a-lifetime honor to work on this case.”
The litigation and consent decree were filed by the EEOC under Title VII of the Civil Rights Act in the U.S. Court for the District of Hawaii (U.S. Equal Employment Opportunity Commission v. Lockheed Martin, CV-05-00479).
EEOC Honolulu Local Office Director Timothy Riera praised the agency’s lead investigator in the case, Gloria Gervacio, and said: “The overt harassment to which Mr. Daniels was subjected in Hawaii represents some of the most severe misconduct this office has come across. It is imperative that employers here take proactive measures to ensure that discrimination complaints are taken seriously and that all employees work in an environment free of harassment.”
Racial harassment charge filings with EEOC offices nationwide have more than doubled since the early 1990s from 3,075 in Fiscal Year 1991 to approximately 7,000 in FY 2007 (based on preliminary year-end data). Additionally, race remains the most frequently alleged basis of discrimination in charges brought to the EEOC, accounting for about 36% of the agency’s private sector caseload.
On Feb. 28, 2007, EEOC Chair Naomi C. Earp launched the Commission's E-RACE Initiative (Eradicating Racism And Colorism from Employment), a national outreach, education, and enforcement campaign focusing on new and emerging race and color issues in the 21st century workplace. Further information about the E-RACE Initiative is available on the EEOC’s web site at http://www.eeoc.gov/initiatives/e-race/index.html
Supreme Court will decide 42 USC Section 1981 retaliation case
September 25, 2007 by Ross Runkel at LawMemo
CBOCS West, Inc. v. Humphries (certiorari granted 09/25/2007)
Details: http://www.lawmemo.com/supreme/CBOCS/
Humphries sued under 42 USC Section 1981 claiming that his employer discharged him in retaliation for complaining to managers about (a) disciplinary actions taken against him allegedly because of his race, and (b) the discharge of another employee allegedly because of that employee's race.
The 7th Circuit held (2-1) that 42 USC Section 1981 provides a cause of action for retaliation.
The US Supreme Court granted certiorari to review the 7th Circuit's judgment.
Walgreens: "store assignments based on race"
March 08, 2007 by Ross Runkel at LawMemo
The EEOC claims Walgreens assigns managers, trainees, and pharmacists based on race - assigning them to low-performing stores and to stores in African American communities because of their race.
[Details in EEOC press release]
EEOC St. Louis District Director James R. Neely, Jr., said, "Essentially, Walgreens has made store assignments based on race. This policy has served to restrict the opportunities for advancement of African American employees at Walgreens stores nationwide."
So the EEOC has sued Walgreens in the U.S. District Court for the Southern District of Illinois.
A group of current and former African American managers filed a private lawsuit making similar allegations in June 2005. That lawsuit is currently pending in the U.S. District Court for the Southern District of Illinois, and the plaintiffs in that case have asked the court to certify it as a class action.
Ash v. Tyson tries a comeback
January 18, 2007 by Ross Runkel at LawMemo
Less than a year after the US Supreme Court remanded Ash v. Tyson Foods to the 11th Circuit, the case is trying to make a comeback. [Details]
Plaintiffs have filed a petition for certiorari, and the case is on the Court's conference calendar for January 19.
And the petitioners' Reply Brief points to extensive plagiarism (my word) in which the 11th Circuit copied from the defendant's brief, and "reproduces even the typographical and grammatical errors." An Appendix to the Reply Brief sets out a detailed comparison of the brief and the opinion.
A manager called an African-American supervisor "boy," and the 11th Circuit said that could not be evidence of racial animus because the comment was not "black boy." The Supreme Court told the 11th Circuit to be a bit more realistic about the context of the word "boy" rather than categorically excluding it as evidence of pretext in a Title VII case. The 11th Circuit took another look and decided that "boy" in context could not have had any racial significance.
As evidence of pretext in a Title VII case two black employees had evidence that their qualifications were better than the qualifications of the folks that actually got the promotions they sought. The 11th Circuit said this evidence could not be used unless "the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face." The Supreme Court thought that was "unhelpful and imprecise" and sent the case back for some true legal reasoning. The 11th Circuit then applied the rule that "disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question."
My view:
The qualifications issue badly needs Supreme Court review. Courts that follow some form of the "slap in the face" test (even when dressed up in fancy legal lingo) have got it backwards. It's for the jury to make any inferences about evidence unless no reasonable juror could make the inference. The 11th Circuit's test selects one type of pretext evidence for special treatment, and that evidence never gets to a jury.
The "boy" question is a serious one. However, I think the 11th Circuit is probably right in saying that the plaintiffs did not produce the right kind of evidence to show that the word was being used in its nasty and insulting sense.
Original 11th Circuit decision.
Supreme Court decision.
Second 11th Circuit decision.
Petition for certiorari.
Petitioners' Reply Brief (containing Appendix)
Supreme Court takes up "cat's paw" case
January 06, 2007 by Ross Runkel at LawMemo
It's called "cat's paw." A human resources manager decides to fire an employee she doesn't know, based mainly on information from a supervisor. The supervisor has a history of racism. So the question is whether the employer is insulated from liability because the manager didn't know the employee was black.
The case: BCI Coca-Cola Bottling Co v. EEOC, certiorari granted January 5, 2007. [Details, case below, etc.]
EEOC claimed that BCI discharged Stephen Peters in violation of Title VII. The trial court granted summary judgment for BCI; the 10th Circuit reversed. The US Supreme Court granted certiorari to review the 10th Circuit decision.
BCI discharged Peters, who is black, for insubordination. EEOC claimed that BCI discriminated on the basis of race because similarly situated white and Hispanic employees were treated less harshly. The discharge decision was made by a human resources manager based on information provided by Peters' immediate supervisor plus a review of Peters' personnel record. The HR manager did not know Peters was black. The supervisor not only knew Peters’ race but allegedly had a history of treating black employees unfavorably and making disparaging racial remarks in the workplace.
The formal Question Presented in the Supreme Court is:
"Under what circumstances is an employer liable under federal anti-discrimination laws based on a subordinate’s discriminatory animus, where the person(s) who actually made the adverse employment decision admittedly harbored no discriminatory motive toward the impacted employee."
EEOC hits FedEx with broad subpoena
June 07, 2006 by Ross Runkel at LawMemo
EEOC is investigating FedEx on charges of a pattern and practice of discriminating against African-Americans and Latinos in promotion.
FedEx refused to comply with an administrative subpoena, and EEOC has gone to court to enforce the subpoena. Details in the EEOC press release - EEOC Investigating FedEx on Charges of Companywide Race, National Origin Discrimination.
The claim against FedEx is that it uses a cognitive ability test known as a Basic Skills Test for promotion from the entry-level position of handler to positions of customer service agent, ramp transporter driver, or courier.
The claim is that this test has an adverse impact on African-Americans and Latinos, and discriminates against them in violation of Title VII.
Claims like this require complex statistical evidence, much of which must come from the employer's own records. See Disparate impact #20 from Employment Law 101.
Herrera today, gone tomorrow
June 02, 2006 by Ross Runkel at LawMemo
Strange. The 10th Circuit filed an opinion on Tuesday and withdrew it on Wednesday.
The order:
The opinion entered in this matter on May 30, 2006, is withdrawn. The appeal shall be restored to pending status.
The case: Herrera v. Lufkin Industries (10th Cir 05/30/2006, 05/31/2006).
Findlaw has dutifully scrubbed the original opinion off its web site. We've captured the original 05/30/2006 opinion.
I thought the case was pretty ordinary. Some racist comments which the court thought were not pervasive or serious enough to create a legally actionable offensive work environment.
Employment Law Memo provided this summary:
Herrera sued the employer, asserting claims for (among other things) hostile environment race-based harassment under Title VII, breach of contract, and intentional infliction of emotional distress (IIED). The trial court granted summary judgment in favor of the employer on the first two claims, and judgment as a matter of law in favor of the employer on the third. The 10th Circuit affirmed, concluding that 1) the alleged conduct was not sufficiently "severe or pervasive" to constitute actionable harassment under Title VII; 2) Herrera's employee handbook didn't constitute a contract, and Herrera wasn't constructively discharged even if there had been a contract; and 3) the conduct underlying Herrera's IIED claim was not sufficiently extreme and outrageous to support that claim.
EEOC policy on race and color discrimination
April 19, 2006 by Ross Runkel at LawMemo
EEOC has new (04/19/2006) information on Race and Color Discrimination in Employment.
One million dollars for a hangman's noose
March 22, 2006 by Ross Runkel at LawMemo
"It is shocking that such egregious racial harassment still occurs in the 21st century workplace, more than 40 years after passage of the landmark Civil Rights Act." Quoting EEOC’s Houston District Director.
EEOC got a $1 million settlement of a racial harassment case. The allegations were:
A black employee was subjected to a barrage of racial epithets, culminating in an incident where white co-workers placed a noose around his neck in the company bathroom and choked him. The employer did not stop its employees, including managers, from harassing the employee on the basis of his race (black) and subjecting him to a racially hostile work environment - including verbal and physical abuse.
More details: EEOC press release.
Racial slurs but no smoking gun
March 20, 2006 by Ross Runkel at LawMemo
Subtitle: Let the judges rather than the jury weigh the evidence.
Sub-subtitle: So long Ash v. Tyson Foods.
Wal-Mart fired Myron Canady. Well, actually, Canady's supervisor's boss' boss fired him.
Canady, an African-American, claimed that race was a factor, and sued under Title VII. He pointed to what looked like a smoking gun: His supervisor had used many of the classic and most offensive racial slurs. "Nigga" and "lawn jockey." He called himself a "slave driver" and said all African-Americans look alike, and said Canady's skin color seemed to wipe off onto towels.
Wal-Mart said Canady was fired because he was insubordinate. He yelled at his supervisor's boss in front of customers and other employees.
On summary judgment motion, a key issue is whether Canady has evidence that insubordination was a pretext, and that race was the true reason.
You might think that the supervisor's continued use of racial comments would do it pretty nicely, especially after the US Supreme Court's decision in Ash v. Tyson Foods (US Supreme Court 02/21/2006) which unanimously chastised the 11th Circuit for ignoring use of the word "boy." Looks a bit like a smoking gun.
Not in the 8th Circuit under these facts. The court seemed to think the wrong guy was holding the smoking gun. The supervisor who made the comments was not the one who made the discharge decision (it was his boss' boss), and the comments were not made in the context of that decision.
Canady also claimed he was subjected to a racially hostile work environment in violation of Title VII.
On this point, the court seemed to think the gun wasn't all that smoky. The supervisor apologized for his "Nigga" comment and did not repeat it. The "slave driver" comment was, in context, not a sign of racial bias but merely descriptive of the supervisor's reputation.
Read all about it: Canady v. Wal-Mart Stores (8th Cir 03/17/2006) (by 2-1 vote).
Can this be? I have to agree with the dissent: There was enough evidence to send the case to a jury to decide what the facts really were.
As for harassment, there was a lot of extremely offensive racial commentary coming from the supervisor during a seven month period.
As for the discharge, the majority runs roughshod over Ash v. Tyson Foods. The dissent points out that reasonable jurors could infer that the supervisor was involved in the discharge decision and could infer that the employer's proffered reason was a pretext. Also, the dissent points out that Canady's affidavit denied any disrespect for Wal-Mart management and denied knowingly engaging in insubordination.
My view: The majority weighed the evidence, rather than letting a jury do that. Summary judgment is not the place for a judge to decide contested issues of fact.
Do I smell a certiorari petition?
Burden of proof in disparate impact case
March 04, 2006 by Ross Runkel at LawMemo
Circuit court are split 3-1 on whether it is the plaintiff (employees) or defendant (employer) who has the burden of proof on the issue of the availability of a less discriminatory alternative employment practice in a disparate impact case.
The latest entry is IBEW v. Mississippi Power & Light (5th Cir 03/02/2006), holding that the burden is on the plaintiff.
Basic facts:
- The union demonstrated that the employer had an employment practice that had a disparate racial impact on African-American employees. The employment practice was the method setting cutoff scores on a validated standardized test.
- The employer demonstrated that its practice was both "job related" and "consistent with business necessity."
- Neither party made a showing that there was or was not an alternative selection device that would have a lesser racial impact and also serve the employer's legitimate interest.
The statute is part of the Civil Rights Act of 1991: 42 USC Section 2000e-2(k)(A)(ii):
An unlawful employment practice based on disparate impact is established ... only if --(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or
(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.
My view: The burden of proof is on the plaintiff.
The statute gives the plaintiff two ways to go, separated by the word "or." The plaintiff failed under subsection (i) because the employer did shoulder its burden of proving that the practice was "job related for the position in question and consistent with business necessity."
Therefore, the case moved to subsection (ii), which leaves no doubt that the burden is on the plaintiff. How could the language be more plain?
The circuit courts are split on this issue. The 3rd and 11th Circuits have held that the burden is on the plaintiff. The 8th Circuit has held that the burden is on the defendant.
Read more about this case, the circuit court split, and the possibility of this issue going to the US Supreme Court at Michael Fox's Jottings By An Employer's Lawyer.
42 USC Section 1981 limited to contracting parties
February 22, 2006 by Ross Runkel at LawMemo
Domino's Pizza v. McDonald (US Supreme Court 02/22/2006): The US Supreme Court holds (unanimously) that a plaintiff who lacks any rights under an existing contractual relationship with the defendant, and who has not been prevented from entering into such a contractual relationship, cannot bring suit under 42 USC Section 1981.
Domino's Pizza had several contracts with JWM Investments, a corporation. McDonald, an black man, was an officer and the sole shareholder the JWM corporation. McDonald personally was not a party to the contracts. McDonald sued Domino's claiming that Domino's terminated its contracts with JWM because of racial animus toward him. The suit was brought under 42 USC Section 1981 which provides that "All persons within the jurisdiction of the United States shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens." The trial court dismissed the suit, saying McDonald did not have standing because he was not a party to the contracts. The 9th Circuit reversed, saying "the same discriminatory conduct can result in both corporate and individual injuries." The US Supreme Court reversed the 9th Circuit decision.
Supreme Court - "Boy" can be probative of racial bias
February 21, 2006 by Ross Runkel at LawMemo
If a manager refers to a black employee as "boy," is that evidence of racial animus?
The 11th Circuit thought not, unless "boy" was modified by some obviously racial adjective such as "black" or "white." Thankfully, the US Supreme Court has a better grip on reality. Ash v. Tyson Foods (US Supreme Court 02/21/2006)
Two African-Americans were superintendents who were denied promotions. They sued claiming race discrimination in violation of Title VII and 42 USC Section 1981. The 11th Circuit decision went against them. The US Supreme Court granted certiorari and remanded the case in a per curiam decision, without hearing oral argument.
There was evidence that the plant manager (the decisionmaker) referred to each of the employees as "boy." The 11th Circuit held that use of "boy" alone (without adding "white" or "black") was not evidence of racial animus. The US Supreme Court said this was error because "The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage."
Non-contracting party standing: 42 USC 1981
December 07, 2005 by Ross Runkel at LawMemo
42 USC Section 1981 forbids race discrimination in a contractual relationship. Does a non-contracting party have standing to sue for a violation?
Assume this: ABC Corporation has a contract with XYZ Corporation. XYZ is wholly owned by John McDonald, who is black. ABC terminates the contract because of McDonald's race.
- Question 1: Can XYZ recover damages against ABC? (I suppose so, but that's not the question I want to address.)
- Question 2: Can McDonald recover damages against ABC? Another way to ask that: Does McDonald have "standing" to sue when he was not a party to the contract?
The US Supreme Court heard oral arguments on December 6 on Question 2 in Domino’s Pizza, Inc. v. John McDonald. [Summary and briefs]
SCOTUSblog summarizes the arguments here: Recap of Yesterday’s Argument: Domino’s Pizza, Inc., et al. v. John McDonald
My view:
- The Court has to figure out what Congress intended when it wrote the original version of the statute over 100 years ago.
- In those days hardly anybody (hardly any lawyers, that is) thought that a contract suit could be brought by anybody other than the two corporations that signed the contract. I think a majority of the Court will grab that idea to conclude that Congress never intended for non-contracting parties to have rights under Section 1981.
- Some of the Justices have sympathy for McDonald's situation, but the Justices' personal desires should not get in the way of interpreting Congressional intent.
- Another point: McDonald chose to do business through the corporate form. That provided him with certain advantages, such as limited liability. The disadvantage is that he's not a party to any contracts entered into by his corporation.
42 USC 1981 suit by non-contracting party
December 04, 2005 by Ross Runkel at LawMemo
Does a person who was not a contracting party have standing to sue under 42 USC 1981? The US Supreme Court will hear arguments on that question on December 6 in Domino's Pizza v. McDonald (No. 04-0593).
Federal Circuit Courts have provided conflicting answers.
Here's what happened in the 9th Circuit:
- Domino's Pizza had entered into several contracts with JWM Investments, a corporation.
- McDonald, an African-American, was an officer and the sole shareholder the JWM corporation.
- McDonald personally was not a party to the contracts.
- McDonald sued Domino's claiming that Domino's terminated its contracts with JWM because of race.
- The suit was brought under 42 USC Section 1981 which provides that "All persons within the jurisdiction of the United States shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens."
- The trial court dismissed the suit, saying McDonald did not have standing because he was not a party to the contracts.
- The 9th Circuit reversed, saying "the same discriminatory conduct can result in both corporate and individual injuries."
- The US Supreme Court granted certiorari to review the 9th Circuit decision.
Decision below (unpublished): McDonald v. Domino's Pizza (9th Cir 06/18/2004)
Briefs: http://www.lawmemo.com/docs/us/dominos/
State secrets trump Title VII
August 03, 2005 by Ross Runkel at LawMemo
How can a covert CIA agent bring a Title VII action without running head-on into the "state secrets doctrine"?
Jeffrey Sterling, an African-American, was a covert CIA agent who claimed racial discrimination by CIA management plus retaliation for using internal EEO procedures.
In defending Sterling's Title VII action, the CIA Director filed a declaration with the court saying that this case would require disclosure of highly classified information about the identity, locations, and assignment of CIA operatives.
The judge reviewed the declarations ex parte and in camera.
Conclusion: Case dismissed. The 4th Circuit affirmed. Sterling v. Tenet (4th Cir 08/03/2005). http://caselaw.findlaw.com/data2/circs/4th/041495p.pdf
- Proving a prima case would require revealing secret information.
- Requiring the government to show a legitimate non-discriminatory reason would involve disclosure of secret information.
- Proof of the facts in this case would require attendance by witnesses who would be covert CIA operatives.
- Proceeding under special procedures would be too risky.
Bottom line: Dismiss the case.
My view: An unusual situation that most lawyers will never confront.
Supreme Court gets 42 USC 1981 case
April 25, 2005 by Ross Runkel at LawMemo
Section 1981 prohibits race discrimination in the formation, termination, and performance of contracts. Can a person who is not a contracting party recover under 1981?
That's what the US Supreme Court will decide in Domino's Pizza v. McDonald, Docket No. 04-593, certiorari granted April 25, 2005.
The allegations were: McDonald, an African American, was the president and main shareholder of JWM, a corporation. JWM entered into contracts with Domino's. Domino's made it difficult or impossible for JWM to perform, propelling JWM into bankruptcy. JWM and Domino's settled. McDonald sued Domino's under Section 1981 claiming financial and emotional loss. He claimed that the downfall of JWM was caused by racial discrimination on the part of Domino's. The allegation have not been proved. The trial court granted summary judgment for the Domino's.
The 9th Circuit reversed, saying that McDonald, even though he personally had no contractual relationship with Domino's, had standing to sue Domino's for alleged injuries that he personally suffered. The 9th Circuit's decision (06/18/2004) was not reported. See 2004 WL 1380296.
The 9th Circuit relied on its earlier case Gomez v. Alexian Bros. Hosp., 698 F.2d 1019 (9th Cir 1983). The Circuits are split on this theory. See Guides Ltd v. Yarmouth Group, 295 F.3d 1065 (10th Cir 2002).
This corporation was a 42 USC 1981 "person"
April 22, 2005 by Ross Runkel at LawMemo
Section 1981 prohibits race discrimination relating to contract formation and performance. A corporation does not have a "race" so you would think a corporate independent contractor could not be a "person" under 1981. Usually true, but here's an exception.
Bains LLC was a corporation, and all the stock was owned by three brothers who were US citizens born in India. The brothers and many of the corporation's employees were religiously observant Sikhs who wore turbans and long beards.
Bains LLC contracted with ARCO to haul fuel to ARCO's Seattle terminal. Bill Davis was ARCO's lead man at the terminal, and he made life difficult for Bains' drivers - verbally harassing them, slowing them down, making them stand in the rain, etc. Bains complained to Davis' boss, the abuse continued, Bains complained again. Then ARCO terminated Bains LLC without giving a reason and without the required 30 day notice.
A jury returned a verdict for Bains: ARCO breached the contract - damages $50,000. ARCO discriminated on account of race - nominal damages $1 plus punitive damages of $5,000,000. Yes, five million dollars punitive damages on top of a one dollar compensatory damages, but 9th Circuit ordered the punitives reduced to no more than $450,000. Bains LLC v. ARCO Products (9th Cir 04/19/2005).
How can a corporation prevail under Section 1981? The 9th Circuit explains that Bains LLC "acquired an imputed racial identity." This was the theory used in Thinket Ink v. Sun Microsystems (9th Cir 2004).
My view: Perhaps a small corporation whose shareholders are all of one race should be treated as a Section 1981 "person," but not for the reasons given in the Thinket case. In Thinket the 9th Circuit analyzed whether a corporation could have "standing," and relied on the classical standing cases. Those cases might be relevant if the corporation is suing to redress injuries to others (e.g., shareholders, employees), but not so relevant when the corporation sues to redress an injury to itself. In those cases, the more relevant inquiry is one of pure statutory interpretation: Did Congress intend for a corporation to be a "person" under Section 1981? Perhaps, given 1981's history as a post-Civil War statute designed to eradicate the badges and incidents of slavery. In any event, the Bains case appears to be the prevailing view.
Four-fifths test is not a safe harbor
April 12, 2005 by Ross Runkel at LawMemo
"A selection rate for any race, sex, or ethnic group which is less than four-fifths (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact." So says the EEOC regulation.
How does a Memphis police sergeant to get promoted to lieutenant? First pass a written test (whose cut-off score was never validated), and then move on to three other requirements.
The City had required a passing score of 70, but that resulted in a greater than 4/5 impact on African-American applicants, so the City reduced the passing score to 66. Black applicants who failed the test sued under Title VII claiming race discrimination, using the disparate impact theory.
The City's defense: No disparate impact proved because under the new cut-off score the impact was less than the four-fifths required by the EEOC regulation. In other words, there was some impact but not enough to trigger a requirement that the cut-off score be validated.
The trial court used other statistical methods as evidence of adverse impact. (a) The "T-test" which measures the difference in mean (i.e. - average) scores between minority and non-minority candidates. (b) The "Z-test" which measures statistical success among groups (i.e. - it computes the average scores of the passing candidates for each group and then compares those group averages).
The 6th Circuit (2-1) affirmed the trial court's finding of adverse impact, rejecting the City's argument that disparate impact could not be proved unless the impact satisfied the four-fifths rule. Isabel v. City of Memphis (6th Cir 04/11/2005).
The dissent was quite sure that previous authority in the circuit meant that no other statistical methods could be used if an employer satisfied the four-fifths rule. She thought the City properly "relied on the bright line four-fifths rule" and that plaintiffs should not be allowed to use "the newest statistical flavor of the month."
My view: It's too late in the day to argue that only one method of statistical analysis can be used to prove disparate impact. These cases are won or lost at the trial level, by persuading the court that one or another statistical method is truly indicative of whether the measured impact is merely a matter of chance.
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