LEGAL BRIEF: Decision on EEOC Case to Establish a “Timely Claim”

This post is in reference to Tademy v. Union Pacific Corp., Case No. 06-4073 (10th Cir., April 1, 2008). This case was partially about clarifying what constituted a timely complaint and determining if acts of harassment, etc. spread over many years could be considered as part of a collective act. In other words, could a recent act of harassment, etc. mean that past harassment could be considered--even if the past acts were outside the statutory time frame. Are they collective acts?

The EEOC filed a brief as amicus curiae to address the standard for establishing a timely claim involving a hostile work environment under National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Beginning in the mid-1990s, the plaintiff (Tademy), who is black, experienced a succession of incidents of racial hostility in the workplace. He reported these incidents, but the employer/defendant either failed to investigate or imposed ineffectual discipline on the perpetrators.

In June 2001, plaintiff filed an EEOC charge about this harassment but decided not to file suit because defendant promised to institute training on harassment. Defendant allegedly did not do so. In July 2003, the plaintiff found a hangman’s noose at his worksite. Following an investigation, defendant fired the individual who admitted placing the noose; he was, however, later reinstated.

After word of the termination got out, plaintiff began to experience hostile treatment from his coworkers. In January 2004, plaintiff filed a second EEOC charge describing the noose incident and noting that he had also reported many other racial occurrences to management. He then filed suit. The district court granted defendant’s motion for summary judgment on the ground that the evidence was insufficient to support a finding of a hostile work environment. In reaching this conclusion, the court refused to consider the incidents occurring before plaintiff's first charge in 2001, holding that they were not part of the same hostile work environment.

In its amicus brief, the Commission argued that all of the alleged incidents were sufficiently related to one another in nature to constitute a single hostile work environment. The fact that different employees may have perpetrated each individual act should make no difference in determining whether a hostile work environment exists from the perspective of the victim. The Commission argued that under Morgan the plaintiff may obtain relief for the entire hostile work environment, including acts of harassment prior to his first charge, because it constituted a single violation. Even if the earlier acts of harassment were not part of the same hostile work environment, the district court should have considered them as background evidence supporting the plaintiff’s claim that he was subjected to a hostile work environment during the charge-filing period (300 days).

On appeal, the Tenth Circuit reversed the district court, holding that under U.S. Supreme Court precedent, the court may consider discriminatory behavior that occurred outside the 300-day statutory time period so long as one act contributing to the hostile environment occurred within the statutory time period. The Tenth Circuit also took the district court to task on the noose incident, stating it improperly adopted the coworker's explanation for the noose. Granting all inferences in favor of Tademy, the court found that in light of potential implausibilities in the coworker's story, a jury could find that the hanging of the noose stemmed from racial animus.

In essence, the Tenth Circuit’s decision states that as long as one act occurs with the statutory time period, all potentially illegal behavior can be considered as part of a collective act against a complaining employee.

Sources: http://www.eeoc.gov/litigation/06annrpt/index.html

Cracker Barrel Restaurants Argue that U.S.C. 1981 Doesn’t Recognize A Right-To-Sue on Retaliation

This is how far employers will go to protect their right to target and terminate complaining employees…

The case in question is CBOCS West Inc. v. Humphries. CBOCS West Inc. runs the Cracker Barrel chain of restaurants. The case raises an issue that remains unresolved in the Civil Right Act’s (1866) nearly century and a half of history: does the Act’s first section, now codified as 42 U.S.C. 1981, guaranteeing equality in the right to make a contract, forbid reprisals against an individual who complains of discrimination against others.

Cracker Barrel Restaurants has filed an appeal to the Supreme Court, in which they are essentially arguing that Federal anti-discrimination statutes do not protect employees from being fired for retaliatory purposes under U.S.C. 1981. To state this plainly, Cracker Barrel is arguing that it is not okay for an employer to fire an employee for discriminatory reasons (based on existing statutes), but that it is okay to fire an employee for complaining about the discrimination. According to the Cracker Barrel appeal, retaliation is not specifically mentioned in U.S.C. 1981.

The worker involved in the CBOCS case, Hedrick G. Humphries, is a black man who was fired from his job, allegedly as a retaliatory gesture. He filed his case under Title VII and Section 1981. His Title VII claims were dismissed for procedural reasons. So, his case became solely a Section 1981 claim.

A District Court ruled that Section 1981 does not cover retaliation claims. But, the Seventh Circuit Court disagreed, sending the case back for a trial on whether Humphries was fired because – as he claims – he had complained about the firing of a black employee who was a food server. He also had complained earlier about a supervisor’s remarks to white workers that he was there to take care of their interests.

CBOCS West Inc. appealed this case to the Supreme Court, on April 25 of last year, raising this question:

“Is a race retaliation claim cognizable under 42 USC Sec. 1981?”

The company, noting that Section 1981 does not include the word “retaliation,” argued that there is a basic difference in the concept of a firing based on retaliation and one based on discrimination. A retaliatory discharge, it said, is motivated by the worker’s complaint, not by his or her race.

If the worker had not complained, it added, there would have been no firing – whether the worker is white or black. By contrast, a discriminatory firing is based explicitly on that worker’s race; if it were not for the worker’s race, there would have been no discharge.

Cracker Barrel is arguing that Congress did not put retaliation rights in Section 198, while they had done so with other civil rights laws. In other words, Cracker Barrel says there is no right to a retaliation claim under Section 1981.

A number of Supreme Court Justices — at least a strong nucleus of a potential majority — on Wednesday showed fairly strong attachment to an idea that definitely would reduce the chances that an old civil rights law could be used to protect workers against a modern form of punishment at work. In the oral argument on CBOCS West v. Humphries (06-1431), those Justices implied that the Court could prevent claims of retaliation for complaining of workplace racial bias, under a law that dates to 1866, by simply concluding that the law gives no one the right to sue to raise such an issue. The Justices who seemed fascinated with denying a “cause of action” for retaliation under so-called “Section 1981″ said they could find nothing in that statute to permit such a lawsuit.

The Supreme Court will render a decision in this appeal by late Spring.

Stay tuned! For more details, see the links listed below.

Sources: http://www.usdoj.gov/osg/briefs/2007/3mer/1ami/2006-1431.mer.ami.html and http://www.scotuswiki.com/index.php?title=CBOCS_West_v._Humphries

Every Hostile Work Environment is Different

We each go through our own little versions of hell, when we’re combating racism on the job. While there may be some similarities with the things we go through (e.g., being isolated from staff, being ignored, being called by racial epithets, etc.), there are so many nuances to our experiences that no two hostile work environments are really the same.

Black employees need to really become familiar with the term a “hostile work environment.” Far too often, I think we brush off a lot of the offensive behavior at work because we may not have been called a ni**er or we may not have been subjected to a noose hanging from a light fixture. But, if we are dealing with behavior that is persistent and pervasive, that makes it hard for us to do our jobs, we may need to have someone look into whether or not Federal statutes are being violated in regard to our treatment.

A hostile work environment falls under harassment in Title VII of the Civil Rights Act. Here’s what the EEOC has to say about it:

Harassment must be analyzed on a case-by-case basis, by looking at all the circumstances and the context. Relevant factors in evaluating whether racial harassment creates a sufficiently hostile work environment may include any of the following (no single factor is determinative):

--The frequency of the discriminatory conduct;
--The severity of the conduct;
--Whether the conduct was physically threatening or humiliating;
--Whether it unreasonably interfered with the employee’s work performance; and
--The context in which the harassment occurred, as well as any other relevant factor.

The more severe the harassment, the less pervasive it needs to be, and vice versa. Accordingly, unless the harassment is quite severe, a single incident or isolated incidents of offensive racial conduct or remarks generally do not create an abusive working environment. But a single, extremely serious incident of harassment may be sufficient to constitute a Title VII violation, especially if the harassment is physical.

Examples of the types of single incidents that can create a hostile work environment based on race include: an actual or depicted noose or burning cross (or any other manifestation of an actual or threatened racially motivated physical assault), a favorable reference to the Ku Klux Klan, an unambiguous racial epithet such as the “N-word,” and a racial comparison to an animal.

Racial comments or other acts that are not sufficiently severe standing alone may become actionable when repeated, although there is no threshold magic number of harassing incidents giving rise to liability. Moreover, investigators must be sensitive to the possibility that comments, acts, or symbols that might seem benign to persons of the harasser’s race could nevertheless create a hostile work environment for a reasonable person in the victim’s position.

Here are a couple of examples of a hostile work environment that show the differences in abuse. It includes everything from being called a ni**er to being required to work longer hours based on stereotypes, to being subjected to racially coded remarks, being set up for failure, etc.:

Reedy, 333 F.3d at 908-09: [The] working environment of Plaintiff, Black, was so objectively abusive as to alter the conditions of his employment where, over a seven-month period coworkers called him and other Black employees “n------” on numerous occasions and threatened them with violence, and the company allowed racial slurs, pictures, and threats to linger in the men’s bathroom.

Aman, 85 F.3d at 1078-84: [A] reasonable jury could find two Black employees were subjected to racially hostile environment where managers and coworkers repeatedly made coded racial remarks, and managers required them to do menial tasks outside their job description, yelled at them, and made their jobs more difficult by withholding necessary information, refusing to deal with them, and falsely accusing them of misconduct.

Ross v. Douglas County, 234 F.3d 391, 393 & 395-97 (8th Cir. 2000): affirming verdict in favor of Black employee whose Black supervisor subjected him to racially derogatory slurs, such as the “N-word” and “black boy,” and referred to the employee’s wife, who was White, as “whitey”: “Such comments were demeaning to Ross. They could have been made to please Johnson’s white superior or they may have been intended to create a negative and distressing environment for Ross. Whatever the motive, we deem such conduct discriminatory.”

Kang v. U. Lim America, 296 F.3d 810, 817 (9th Cir. 2002): [A] hostile work environment could be found where Korean supervisor with stereotypical beliefs about the superiority of Korean workers held Korean Plaintiff to higher standards, required him to work harder for longer hours, and subjected Plaintiff to verbal and physical abuse when he failed to live up to supervisor’s expectations.

Remember, you don’t have to be called the n-word or be threatened with the KKK or nooses in order to prove a hostile work environment. The totality of your abuse will tell the story regarding whether or not you were subjected to an environment that made it difficult or impossible to successfully do your job.

This is why you must document everything happening to you. If you are being ignored (e.g., phone calls not returned, emails not returned, ignored when going to someone’s office to speak to them, etc.), document this behavior because you will need evidence of this later to prove a hostile environment.

Going by this example, you could send an email to this person (not a voicemail) stating that you’ve been leaving email and voice messages for them, but have not received an answer. Or, stating that you came to see them, spoke to them, they looked at you, and went back to their work without responding to you. Ask if you can discuss any issues to create a more positive work experience and clarify any issues. If this email is ignored, forward a copy to your supervisor and ask them to address the problem. If this is ignored, you can contact HR for assistance.

If the person ignoring you is your boss, you can follow the same steps. If they ignore you, you can go straight to that supervisor’s supervisor and/or to HR.

These are tips just for the example provided about being ignored. You get the point. Document everything!! If you’ve been called a name, you want to do the same thing. Get the racial epithet in writing. Immediately shoot off an email stating the behavior is unacceptable, hostile, and offensive. Start plugging in those words!! HOSTILE WORK ENVIRONMENT!! OFFENSIVE WORK ENVIRONMENT!!

LEGAL BRIEFS: Judge Grants Final Approval for $6.2 Million Partial Settlement of Historic Union Discrimination Case

Jan. 15, 2008 – NEW YORK – A federal court granted final approval for a $6.2 million partial settlement for black and Hispanic sheet metal workers who suffered discrimination by their union, the U.S. Equal Employment Opportunity Commission (EEOC) announced.

The EEOC and the State and City of New York, along with the Lawyers’ Committee for Civil Rights Under Law in Washington, DC and the New York law firm of Debevoise & Plimpton LLP representing the minority members, had sued Local 28 of the Sheet Metal Workers’ International Association in New York City (Local 28) for providing fewer job opportunities to the workers because of their race or national origin for many years. Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits race and national origin discrimination by labor organizations. The partial settlement was reached through intense negotiations between the plaintiffs and Local 28.

Judge Robert L. Carter of U.S. District Court for the Southern District of New York granted final approval of the settlement, which would compensate minority members of Local 28 for lost wages for the years 1984 to 1991. The parties have also agreed to significant changes in the union’s job referral system as well as monitoring systems aimed at equalizing members’ access to job opportunities. Litigation of the remaining claims of union members who suffered discrimination after 1991 continues, as do settlement negotiations, in an effort to obtain a prompt and fair resolution of those remaining claims.

“We hope that these developments are an indication that, with the recent change in leadership, the union has decided, after many years of costly litigation, to work with the court and the plaintiffs in obeying the court orders and to begin to resolve the outstanding claims against it,” said Spencer Lewis, the District Director of the EEOC’s New York office.

“We are thrilled that our clients are finally on the path to receive compensation for some of the discrimination they suffered,” said Michael L. Foreman, Director of the Employment Discrimination Project of the Lawyers’ Committee. “Without the tireless commitment of our co-counsel at Debevoise & Plimpton, who have devoted significant time and resources to this pro bono case, this outcome would not have been possible.”

“We are extremely pleased that such a substantial settlement has been preliminarily approved for this set of claims, and we are eager to continue working toward resolution of remaining claims and issues,” said Jyotin Hamid, a partner with Debevoise & Plimpton.

“This is a significant step forward in what has been a decades-long process to end discrimination against black and Hispanic members of Local 28 and restore their lost wages,” said Joshua Rubin, Senior Counsel at the New York City Law Department. “We will continue working to ensure good practices at the union going forward and to help others reclaim their compensation.”

The EEOC enforces federal laws prohibiting employment discrimination based on race, color, gender (including sexual harassment and pregnancy), religion, national origin, age, disability and retaliation. Further information about the EEOC is available on its web site at www.eeoc.gov.

On Feb. 28, 2007, EEOC Chair Naomi C. Earp launched the 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.

The Lawyers' Committee is a nonpartisan, nonprofit civil rights legal organization, formed in 1963 at the request of President John F. Kennedy to enlist the private bar and the pro bono services of law firms, such as Debevoise & Plimpton, in the enforcement of civil rights. Since its inception, the Lawyers’ Committee has worked as a “private attorney general” by vigorously enforcing civil rights laws in the areas of employment, housing, education, voting rights, environmental justice, and community development. The Lawyers’ Committee represents private parties in federal and state courts throughout the United States in lawsuits against private and governmental entities on behalf of those seeking redress for racial, ethnic, or gender discrimination. More information is available at www.lawyerscommittee.org.

Source: http://www.eeoc.gov/press/1-15-08a.html

The Building Blocks for a Promotion

A friend of mine (Black) was a manager at our company. She went from having a diverse department of subordinates to being placed in a position where she only supervised Black junior level staff. This was not of her doing. The director of her department and our Human Resources manager simply began to make personnel decisions that resulted in all of the staff in this support division being African American.

Regardless of the racial makeup of her staff, this manager always pushed her subordinates to learn new skills and to increase their knowledge about their jobs. She conducted lunch-time trainings, brought in other staff to conduct informal trainings, and passed on information about other training opportunities. Whenever possible, she ensured that her subordinates performed some work that was typical of the work being performed in positions that were one grade higher than her subordinates. By doing so, she took away the argument that her staff had not shown they were capable of performing higher levels of work and she made her staff more competitive for future promotion opportunities by improving their knowledge and skill sets.

Her approach to managing her staff wasn’t appreciated by our employers. In fact, during conversations about her encouraging staff to look into opportunities to advance, this Black manager was told, “You know, some people like to be in the same job for 20 years.” She was also told that she shouldn’t “push” her Black subordinates to want to excel or move up within the ranks of their department. Finally, she was told that the only reason these Black workers had any thoughts about being promoted was because she was putting the idea in their heads.

This manager was told to back off of encouraging her staff to excel and advance.

The manager’s response was that she would be negligent in her job as a manager if she didn’t train her staff, didn’t expose them to more advanced work, didn’t help them improve their knowledge of their job and field, and didn’t encourage them to seek advancement opportunities.

Although she was told that the ideas her subordinates had about promotions weren’t her problem, the legal decision in Bryson vs. Chicago State University supports her management style and the encouragement she provided her employees. The 1996 decision of the 7th Circuit court specifically reasoned:

“Depriving someone of the building blocks for…a promotion…is just as serious as depriving her of the job itself.”

If you are working in a job where you aren’t being provided with the basics that would lead to a promotion, you can legitimately raise serious concerns about the lack of opportunities and training at your job.

Don’t be afraid to express your desire to learn more about your job and to seek out future advancement opportunities. More employees than not want exactly the same thing—to be promoted, to receive significant pay raises, and to have a livelihood that their families can depend on.

If you are not getting access to those building blocks, speak to your supervisor and/or manager and let it be known that you have a desire to learn more. State that you would like to know about in-house and outside training opportunities and that you would like more exposure to different skills sets within your position. If you are not given reasonable answers regarding obtaining these basic building blocks, you should consider speaking to another authority within your department or to an HR representation.

It’s your career, so you should be proactive if you aren’t seeing the opportunities you want and are entitled to at work. Show initiative and find out what you need to do to get to the next levels of your career path. You are entitled to desire success! And, you are entitled to the workplace building blocks that will help you succeed.

One New Hire Can Derail or Destroy a Career

I was looking at the EEOC web site and came across a legal decision that caused an extreme sense of déjà vu because the decision contained language that mirrored a racially-based employment action used against a good friend.

According to the EEOC web site, the decision for Thomas, 183 F.3d at 62-65 denied the summary judgment for an employer because a reasonable person could conclude that the Black plaintiff’s layoff was based on racially biased performance evaluations. Specifically, after a new supervisor was hired in a department, the plaintiff, the office’s only African American customer service representative, went from being one of the highest rated employees to one of the lowest rated. The evidence suggested that the new supervisor deliberately undermined the Black plaintiff’s work, rated the plaintiff harsher than Whites, and that the plaintiff’s earlier high ratings were more accurate.

My good friend had been receiving yearly performance evaluations, which rated her as exceptional across categories. She received the highest ratings the company had to offer. TWO DAYS after a new, non-Black director was brought in, my friend was told that “a number of people” had all sorts of complaints about her job performance and behavior. FOUR DAYS after this director was brought in, my good friend was suspended. Mere weeks after that she was hit with a RIF (reduction in force). Yet, the new director was seeking applicants to consider for her position, among others. So, there really was no reduction or restructuring taking place. That excuse for letting her go was simply a pretext to hide the racially-based motive to run her out. Fake performance issues and documentation of these fabricated performance deficiencies served to fulfill the intentional purge of Black workers from this new director’s department.

It just goes to show how the hiring of one person, who is racist, can change the dynamics in an office and the direction of someone’s career. Even more, the hiring of one racist can have a huge impact on a Black worker’s future at their current place of employment. It’s horrible to be targeted for racial motives. It’s even worse to be fired, laid-off or forced to resign because of racism.

It’s a shame that some supervisors and other members of authority get away with targeting Black workers from their very first day of employment. Do you realize how racist you have to be in order to be unable to control your racist impulses during your first days and weeks of employment? If you don't even want to pretend not to be racist, you really do have it bad. Psychotic bad!

Thankfully, some Blacks report these individuals to agencies, such as the EEOC, in order to vindicate their rights and to hold employers responsible for letting racist supervisors and others with authority violate the law.

There is still a lot of fighting to be done in this struggle to end racially-based abuses.

Source: http://www.eeoc.gov/policy/docs/race-color.html#N_141_

Black Factor's Legal Briefs

From time to time I’ll include posts called Legal Briefs, which provide updates on workplace discrimination, harassment, and/or retaliation lawsuits that have been recently filed or settled in civil court. The point is to let readers know what types of race-related cases have been filed and settled, as well as to provide a look at some of the legal language that is used by complainants in those cases. But, even more importantly, the legal briefs can help confirm that some of the issues readers are facing are in fact happening to other Blacks around the country and that these actions are often illegal.

I’ve been on the receiving end of questionable activities by an employer. So, I know that Black workers go through this mental back and forth…wondering if they are being sensitive or if they are blowing things out of proportion—as we are inevitably accused of by our supervisors or employers. I also know that we often wonder whether actions taken against us are illegal or if employers are within their rights to engage in certain activities.

For instance, in the last legal brief on a race discrimination case settled between Nike (Niketown-Chicago) and over 400 Black employees, the complainants alleged that Nike denied employment benefits to African-American employees by predominately hiring African-Americans into part-time rather than full-time positions and by denying appropriate benefits to those who, though officially part-time, worked enough hours to be entitled to full-time benefits.

I worked for one of the nation’s biggest department store chains, here in New York. Reading that blurb on Nike was like reading my complaints about this megastore. I went in for a job and supposedly only part-time jobs were available. The hours were so few that there weren’t any benefits involved with the position. But, I wanted to work. Anyway, almost immediately I was being asked to work until closing at the store (5 days a week) and I was being asked to work 10-11 hours on Saturday and Sunday.

You can see how the hours were piling up. I immediately wondered why I was listed as part-time, when I was working full-time hours. And, I wondered why there weren’t any benefits. Another worker warned me not to complain about not having benefits. She said that if I complained or asked about the hours, all of my hours would be cut and I would barely be given enough hours to warrant coming in at all.

What was really troubling about this megastore was that as I went floor-to-floor and looked at the staff, I saw that most of the people working on the floors were Black, Hispanic/Latino or Asian (Middle Eastern). Almost all of us were in these part-time jobs, but were working nearly full-time hours. In fact, my supervisor made it a point to mention (in a staff meeting) that only 2 of her 16 subordinates were full-time and that everyone else was part-time and was not eligible for benefits. She said that if we had a problem with that, we could find other work. She was supposed to be doing us all a favor by giving us hours—even without the benefits that would be required by this regular schedule.

I was out of there with a quickness because of this and other problems. However, other employees were trying to convince me that there wasn’t a legal issue with this megastore having almost all part-time staff (mainly minorities) working full-time schedules, but not receiving benefits. They thought it was up to the company’s discretion to make the decision on benefits.

You can call it common sense or not—that if you are working full-time you are entitled to benefits. However, common sense isn’t always common. Many people don’t know their rights and don’t want to challenge a systematic disregard for their rights.

If you look at the Niketown post, you will see that employer’s engaging in this practice may be liable for damages, if they are placing minorities into positions such as this and then are denying them their legally required benefits. This behavior may be illegal and should be questioned. Seeing the Niketown settlement just made my heart go out for everyone placed in the position of working their a**es off for peanuts and not getting the benefits they’ve earned through their sweat and dedication to their job. I felt that that job was a step above working on a plantation. We had absolutely no rights and no respect. And, the employees didn’t want to contact the union about it or make any waves because they desperately needed their jobs and were fearful of complaining.

I got out of there. Still, a chill ran down my spine seeing the same issue at the Niketown store with more than 400 employees raising the same complaint. As a result, I’d recommend that you don’t just skim the legal briefs. Really take a look at the allegations being filed. You might see some similarities to your own issues at work—even issues that you may not have realized were illegal. The legal briefs also provide a snapshot of the legal arguments used and of the legalese—the language—associated with certain violations of law/statutes.

If you are seeing similarities to the cases in the Legal Briefs, there might be language you can use or arguments you can make that more clearly represent your issues—from a legal standpoint. Of course, you aren’t looking at the cases and making false claims. But, you can definitely use the cases to assist you with your wording, improving your understanding of law, and to further develop your complaint by citing similar examples of illegal conduct.

Single Incidences that Create a Hostile and Offensive Work Environment

Normally for an employee to claim they were the victim of a hostile and offensive work environment, the employee must prove that they have been the victim of repeated incidences of mistreatment and abuse in the workplace. The incidences must be severe enough to change the conditions of the employee’s status and must be pervasive and disruptive enough that it is hard or impossible for the employee to do their job.

But, there are single incidences that are legally recognized as immediately being vile enough to rise to the level of creating a hostile and offensive work environment for an African American employee. Therefore, it would only take one occurrence to create a workplace situation that would require immediate action from a supervisor or other member of authority within a company. Two examples of single incidences that can immediately create a hostile and offensive work environment are:

1. The use of a noose or burning cross in the workplace, which is used to intimidate and to create a hostile environment. (It can be an actual or depicted noose or burning cross (or any other manifestation of an actual or threatened racially motivated physical assault); or

2. The use of the n-word in the workplace, which is used to demean, degrade, intimidate, and to create a hostile work environment.

Here’s what was included in several legal decisions:

Nooses and burning crosses:

Williams v. New York City Housing Auth., 154 F. Supp. 2d 820, 824-25 (S.D.N.Y. 2001) (“Indeed, the noose is among the most repugnant of all racist symbols, because it is itself an instrument of violence. It is impossible to appreciate the impact of the display of a noose without understanding this nation’s opprobrious legacy of violence against African-Americans.”); cf. Jackson v. Flint Ink North Am. Corp., 379 F.3d 791, 795 (8th Cir. 2004) (in racial discrimination case involving graffiti depicting a burning cross, court noted that because “its symbolism is potentially more hostile and intimidating than the racial slurs[,]…)

The N-word:

Cf. Spriggs, 242 F.3d at 185 (“Far more than a mere offensive utterance,” the N-word is “pure anathema to African Americans. Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘n-----’ by a supervisor in the presence of his subordinates.”) (citation and quotation marks omitted).

If there is one incident of racist behavior that has a clear historical context of violence and intimidation, a Black employee can rightly complain about race-based abuse and can contact their supervisor, manager or their HR department to seek a remedy for the mistreatment.

Remember, once is enough, when it comes to symbols and language that are widely known to be racist, intimidating, and demeaning.

Source: http://www.eeoc.gov/policy/docs/race-color.html#N_129_

Employment Law Research Links

When a person comes under attack at work and decides they want to know more information about employment law and their overall rights, they often don’t know where to turn. From personal experience, I know what it’s like to go on a mad Internet search to find out what applicable laws and statutes are relevant to a race-based complaint at work.

If you are making complaints about race-based workplace abuses, in many cases you aren’t going to necessarily trust your company’s HR department to be extremely truthful. After all, the company HR department isn’t automatically going to behave as a neutral party and may be assisting in efforts to silence your complaint about illegal mistreatment.

I came across an interesting resource. The NOLO web site (a legal resource) has a great research tool that will allow you to look for specific employment law statutes and cases. The site allows you to input key search terms or the title number and section number of a specific U.S. Code—if you already know what you are looking for. The more specific your search terms are, the better your returned results will be.

For instance, the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin. The Civil Rights Act is contained in U.S. Code 42 starting at section 2000e. There is also equal rights information at U.S. Code 42—section 1981. To research these examples on the NOLO site, you would input 42 as the title and 2000e or 1981 as the section.

You can research Federal laws, state laws, U.S. codes (laws made by Congress), the U.S. constitution (you can search the constitution or browse the Bill or Rights), and the Code of Federal Regulations (rules made by federal agencies and executive departments). There are also other links on the site, such as a link to find bills that have not yet become laws and recent laws (called "Public Laws") that have been approved by Congress and signed by the President, but are not yet included in the U.S. Code.

The link to the site is: http://www.nolo.com/statute/federal.cfm

Legal Decisions on Same Race Discrimination

There was a previous post on this blog about same race discrimination. The post was in response to a reader, who wondered if there was any remedy for Black on Black discrimination. I came across a couple of legal decisions based on same race discrimination. They are:

1. Kang v. U. Lim America, 296 F.3d 810, 817 (9th Cir. 2002) A hostile work environment could be found where Korean supervisor with stereotypical beliefs about the superiority of Korean workers held Korean Plaintiff to higher standards, required him to work harder for longer hours, and subjected Plaintiff to verbal and physical abuse when he failed to live up to supervisor’s expectations; and

2. Ross v. Douglas County, 234 F.3d 391, 393 & 395-97 (8th Cir. 2000) Affirming verdict in favor of a Black employee whose Black supervisor subjected him to racially derogatory slurs, such as the “N-word” and “black boy,” and referred to the employee’s wife, who was White, as “whitey”: “Such comments were demeaning to Ross. They could have been made to please Johnson’s white superior or they may have been intended to create a negative and distressing environment for Ross. Whatever the motive, we deem such conduct discriminatory.”

Remember, you don’t have to tolerate race-based abuse from Whites, Blacks or anyone else! Federal law prohibits discriminatory, harassing, and retalitory behavior against protected groups. The race of the victim is more relevant than the race of the perpetrator.

Source: http://www.eeoc.gov/policy/docs/race-color.html#N_122_

LEGAL BRIEF: Michigan Company to Pay $500,000 in EEOC Race Bias Suit

I think it was comedian Chris Rock, who once joked, “A White person would rather hire their 52nd retarded cousin, than hire somebody Black.”

That joke seems to fit this update on legal news, considering that the company (described below) would rather hire less qualified Whites, than to bring Black staff into the company to contribute to their success.

Legal Update: A South Lyon, Mich., steel tubing company will pay one half million dollars and implement injunctive relief to settle a race discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC had charged that Michigan Seamless Tube, after purchasing the assets of its predecessor company, refused to hire a class of African American former employees of the predecessor.

According to the EEOC’s suit (Civil Action No. 05-73719 in U.S. District Court for the Eastern District of Michigan), Michigan Seamless began hiring former employees of the predecessor in November 2002. During the company startup, 52 of the former employees were hired -- none of them black. Michigan Seamless continued to hire former employees through 2005, but no African American employees of the previous company were ever hired. Many white employees hired had significantly less experience than the black former employees represented by the EEOC, and in some cases had actually been trained by the same African American employees who were denied hire. The suit also included other black applicants who were denied hire in favor of less qualified white applicants.

Under the consent decree settling the suit, Michigan Seamless will pay $500,000, to be distributed to the class members based on an individualized determination. Michigan Seamless is also required to recruit black applicants by a variety of methods, and will provide training on anti-discrimination laws to all its employees, managers and executive officers.

“This case shows that race discrimination is still a major problem in today’s workplace, more than 40 years after passage of the landmark Civil Rights Act,” said Trina Mengesha, the EEOC attorney who litigated the case. “We trust that management at Michigan Seamless will change its practices and permanently stop discriminating against qualified black applicants.”

Source: http://www.eeoc.gov/press/6-8-07.html

Fight Your Employer's Delay Game!

If you were forced to file an internal complaint against a coworker or supervisor alleging race-based discrimination, harassment, retaliation, etc., you probably learned a thing or two about how an employer (read: The Human Resources Department) can drag out an internal investigation.

Instead of engaging in a prompt and serious investigation of the facts, many an HR team will pursue a strategy of delay and then deny. They will prolong any investigation, hoping the employee will just let the issue die. Or, perhaps they will use the delay to retaliate against the employee, with the hopes of forcing them to resign (constructive termination) before the investigation is complete. Sometimes, the delay is used to give the false assurance that the investigation is being conducted thoroughly — leaving no stone unturned. The reality is that the company may be just using that time to come up with a counter defense to all of an employee’s arguments and evidence that validate illegal mistreatment in the workplace.

After all the hemming and hawing, these delayed investigations sometimes end up with the internal investigating team telling the complaining employee that they couldn’t find any evidence of wrongdoing on anyone’s part. Or, if HR acknowledges wrongdoing, HR may downplay the impact of any offending and illegal actions that the victim was subjected to. This may be followed by the employer promising the complaining employee that the offending employee or supervisor will be “dealt with.” In other words, the complaining employee may be promised that corrective steps will be taken to rectify the race-based harassment, etc.

But, what happens, when an employee is promised that misconduct will be rectified, but the employer does nothing to correct the behavior of the offending employee? And, is there something else afoot, when it comes to these delays in internal investigations?

When it comes to filing a complaint with an external agency (e.g., The Office of Human Rights or the EEOC), employees only have a certain number of days—after a race-based incident—to file a complaint. For instance, an employee may have 90 or 180 days to file a complaint with an outside agency.

So, the reality is that some companies will try to delay any internal investigation with the hopes of causing an employee to miss deadlines with outside investigatory agencies. If an employee files a complaint and it is accepted based on the fraudulent delay of the employer, the employer may try to argue that the complainant missed the deadline and, therefore, the entire investigation/complaint should be dismissed on that basis.

However, according to legal decisions an employer can’t engage in acts or omissions that serve to lull a complaining employee into foregoing a prompt attempt to vindicate his/her rights. Specifically:

“If an employer actively misleads an employee into missing the deadline for filing a charge by dragging out its investigation and assuring the employee that the harassment will be rectified, then the employer will be “equitably estopped” from challenging the delay.” (Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363 (D.C. Cir. 1998)

Also…

“An employer’s affirmatively misleading statements that a grievance will be resolved in the employee’s favor can establish an equitable estoppel.” (Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1531 (11th Cir. 1992)

So, if your employer has engaged in behavior that caused you to miss a complaint filing deadline with an outside agency, you can argue that you missed the deadline because you were misled and delayed by the intentionally manipulative actions of your employer. If the employer tries to get the complaint thrown out, based on the missed deadline, there is legal precedent for overruling that argument.

Intentional Discrimination and Disparate Treatment

According to the Department of Justice (DOJ), Civil Rights Division, a claim of intentional discrimination is one that alleges that similarly situated persons (e.g., coworkers in the same department, employees working under the same supervisor, employees—as a whole, etc.) are treated differently because of their race, color, or national origin. FYI: This information was written in relation to grant applications, but it is very appropriate in explaining discrimination anywhere--such as the workplace.

In order to prove intentional discrimination, an employee must show that "a challenged action was motivated by an intent to discriminate." Elston, supra, 997 F.2d at 1406. This requires a showing that the decision-maker (e.g., supervisor, manager, executive, etc.) was not only aware of the complainant's race, color, or national origin, but that the decion-maker acted, at least in part, because of the complainant's race, color, or national origin. However, the record need not contain evidence of "bad faith, ill will or any evil motive on the part of the [employer]." Elston, 997 F.2d at 1406 (quoting Williams v. City of Dothan, Alabama, 745 F.2d 1406, 1414 (11th Cir. 1984)).

Evidence of discriminatory intent may be direct [e.g., “You’re not getting this job because we don’t promote ni**ers here!”] or circumstantial [e.g., false allegations are used to deny a Black employee a promotion] and may be found in various sources, including statements by decision-makers [e.g., oral and written], the historical background of the events in issue [past patterns on executing similar actions, work history, etc.], the sequence of events leading to the decision in issue [How did everything happen?], a departure from standard procedure (e.g., failure to consider factors normally considered), legislative or administrative history (e.g., minutes of meetings), a past history of discriminatory or segregated conduct [as described in yesterday’s post on checking into prior bad acts], and evidence of a substantial disparate impact on a protected group [a significant change in the status of your employment, impact on your career or work environment, etc.]. See Arlington Heights v. Metro. Housing Redevelopment Corp., 429 U.S. 252 at 266-68 (1977) (evaluation of intentional discrimination claim under the Fourteenth Amendment); Elston, supra, 997 F.2d at 1406.

Direct proof of discriminatory motive is often unavailable. However, if the record contains sufficient evidence to establish a case of discrimination, the investigating agency must then determine if the employer can articulate a legitimate, nondiscriminatory reason for the challenged action. [Many employers can offer a pretext to hide their true discriminatory motives. This usually involves making false allegations against the complaining employee, creating manufactured/fabricated documentation against an employee, providing false eye witness statements of events, etc.]

Similar principles may be used to analyze claims that an employer has engaged in a "pattern or practice" of unlawful discrimination. Such claims may be proven by a showing of "more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts." See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 (1977). The evidence must establish that a pattern of discrimination based on race, color, or national origin was the employer's "standard operating procedure the regular rather than the unusual practice." Id. Once the existence of such a discriminatory pattern has been proven, it may be presumed that every disadvantaged member of the protected class was a victim of the discriminatory policy, unless the employer can show that its action was not based on its discriminatory policy. Id. at 362.

So, if you’re facing rampant discrimination on your job, go for showing patterns of discriminatory behavior by your employer that shows the history of illegal conduct. Also, document everything and be ready to respond to the pretext/lies offered by your employer to justify any discriminatory actions that have occurred at work. Finally, be sure to point out how similarly situated employees (other coworkers with the same job classification, title, salary, etc.) were treated differently—and more favorably—than you were treated. Be sure to show how those differences impacted your career.

For instance, that you were denied training opportunities or a promotion or that you were severely reprimanded, while others were not. Don't forget that being denied the building blocks for a promotion is just as bad as being denied the promotion itself. So, lack of training opportunities, etc. can help prove discriminatory behavior and disparate treatment.

Source: Department of Justice, http://www.usdoj.gov/crt/grants_statutes/legalman.html#Intentional

LEGAL BRIEFS: Workplace Discrimination and the Word "Boy"

This post serves as an FYI that the offensive use of the word “boy”—in reference to an adult Black male—can be used to help build a case alleging race discrimination, harassment, etc. in the workplace.

The U.S. Supreme Court became involved in a 2006 discrimination lawsuit vs. Tyson's Food, Inc. in which 2 Black men said they were denied promotions by a white manager, who referred to them as “boys.” The Supreme Court unanimously overturned an appeals court decision that said the term "boy" alone was not evidence of workplace discrimination. The Supreme Court also ordered the lower court to reconsider the matter.

The Supreme Court stepped in because a jury awarded Anthony Ash and John Hithon $1.75 million apiece in damages, but a judge had thrown out the decision. The two Black complainants had 15 years and 13 years of experience, with Tyson’s Food, respectively. BUT, a white man, with less than 2 years of experience, got a management job they sought at an Alabama plant.

Eric Schnapper, a law professor at the University of Washington who represented the men, told the justices that the term "boy" is offensive and had been considered a slur by other courts. "This form of verbal abuse has its origins in the slave era," he wrote in the appeal of the decision.

In sending the case back to the 11th U.S. Circuit Court of Appeals in Atlanta, the Supreme Court released an unsigned opinion. Supreme Court Justice Alito wrote: "Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign."

Source: http://www.abqtrib.com/news/2006/Feb/20/supreme-court-renews-racial-discrimination-case/

Harassment by a Co-worker or other "Non-Employer"

Some workplace harassment is not perpetrated by someone in a position of authority over an employee. Instead, the harassment may be carried out by an employee’s coworker(s) or some other "non-employer." When this type of harassment takes place, it is often common knowledge among staff. Although we’d like to think that someone with the audacity to harass or bully a coworker would do so out of sight of other employees, often other staff will witness or overhear the harassment. Let’s not forget, one of the best parts of harassment, from the perpetrator’s point of view, is the public humiliation (among staff) that the victim must suffer through. Embarrassing the victim is a huge payoff for people who engage in this behavior. It’s the humiliation that will help to isolate the target of the harassment and that may help persuade the victim to transfer to another department or resign from their job.

Just because an employee is not being harassed by someone in authority doesn’t mean that employers aren’t liable for any damage caused by the mistreatment. So, if you’re being harassed by someone senior to you (with no authority over you), someone who’s the same level as you or even by someone that is junior to you, your employer may still be liable for damage to your career, etc.

In the decision for Faragher, 118 S. Ct. at 2289 the Supreme Court said, “When harassment is perpetrated by the plaintiff’s coworkers, an employer will be liable if the plaintiff demonstrates that ‘the employer either provided no reasonable avenue for complaint [you didn’t have a way to complain of mistreatment] or knew of the harassment but did nothing about it.’”

On top of that, the EEOC states that an employer is liable for harassment by a co-worker or non-employer if management knew or should have known of the misconduct, unless the employer can show that it took immediate and appropriate corrective action.

So, if your coworker (or any workplace “non-employer”) is harassing you, your employer may be liable for punitive and/or other damages if they knew or should have known about your mistreatment because it was so prevalent and out-in-open in your workplace, but they did nothing about it! If your employer did take the right and immediate corrective actions against the person harassing you (e.g., transferring the perpetrator, firing the perpetrator, etc.), you may not be able to convince the court that your employer is liable for any damages.

LEGAL BRIEF: Only the Mental State of the Harasser is Relevant!

When racially-based issues take place in the workplace, employers like to use a few tactics:

--Deny everything!
--Blame the complainant by turning the victim into the bad guy and by pointing out alleged deficiencies with the victim’s behavior. In other words, they will justify why the victim was targeted for mistreatment.
--When backed into a corner, lay all of the blame on the offender and declare—as loudly as possibly—that the company’s higher-ups would have never tolerated illegal misconduct and would have immediately corrected inappropriate behavior, if they had only known about it.

I’d like to focus on #3 for a moment. You see, employer’s like to put all of the blame on a coworker or supervisor, after they see there isn’t any reasonable way they can claim that illegal misconduct didn’t take place. By laying blame on one or more individuals, many employers believe they can escape liability. They will try to make the illegal misconduct look like an anomaly and something that is extremely atypical of what would normally occur in their workplace.

So, the employers will be spitting all of this venom and fire about how horrible the offender was and how they were a rogue employee that went off the rails. The employers will position themselves as rationale, fair, and helpful in the hopes they can escape liability.

But, in the Supreme Court decision for Kolstad v. American Dental Association, 119 S. Ct. 401, (1998) it says, “The test for imposition of punitive damage is the mental sate of the harasser, not of the higher-level officials…”

Therefore, it doesn’t matter how reasonably or fairly the employer may have acted or would have acted; they are still liable for the illegal behavior of their staff, supervisors, etc.

The EEOC states that:

“…an employer is liable for punitive damages if its supervisor commits unlawful harassment or other discriminatory conduct with malice or with reckless indifference to the employee’s federally protected rights.”

So, don’t let an employer sweet talk you into believing that you have no way to seek remedies outside of whatever they may or may not decide to do—in the workplace—to your harasser. Your employer may still have legal liability and may have to pay punitive damages to you, depending on the specific circumstances.

Immediate Response Doesn't Always Negate Liability!

Scenario: An employee is being harassed and subjected to a very hostile work environment due to the behavior of the employee’s supervisor. The behavior of the supervisor is so egregious that everyone knows what’s going on. The supervisor openly humiliates the employee in front of other staff, has been seen shoving and encroaching on the personal space of the employee, has falsely and intentionally accused the employee of mistakes made by other staff, has stripped the employee of many assignments, has asked the employee to perform menial and non-work related tasks, like cleaning, etc. Members of management have seen or heard about the mistreatment because the misconduct is happening out in the open. But, no one does anything!

Finally, the employee can’t take the abuse anymore and goes to HR to complain about the supervisor’s behavior. HR takes quick action against the supervisor. For instance, they demote him and require him to go to sensitivity training.

Question: Is that response good enough to resolve the situation?

Answer: Maybe not!

Even though the company quickly responded to the complaint and took action against the supervisor, the problem is that they waited for the employee to complain about mistreatment before they did anything about it.

According to a decision in Dees v. Johnson Controls World Services, Inc., 168 F. 3d 417, 422 (11th Cir. 1999):

“… [an] employer can be held liable despite its immediate and appropriate corrective action in response to a harassment complaint if it had knowledge of the harassment prior to the complaint and took no corrective action.”

The bottom line is that Federal law does not require that an employee complain about mistreatment because some employees may have a reasonable fear of complaining out of fear of retaliation, etc. For instance if they saw another employee mistreated after complaining of workplace abuse, it would be reasonable to remain quiet, while experiencing mistreatment. So, legally, there is a hope that employees complain about illegal mistreatment, but there is some flexibility on this.

Also, all members of management and authority in a company have an unwritten requirement to report workplace abuse of employees, if they have knowledge of potential misconduct (e.g., witnessing it or overhearing conversations about it, etc.).

So, an employer can’t just sit on its hands and wait for employees to complain about a problem coworker or manager before taking action against the offending person. They can fire an offending employee, but if they knew what was happening and allowed misconduct to continue, they may be legally liable for damages, etc. that occurred, while they did nothing to correct the abuse.