Posted by marykeating on May 26, 2010 under Discrimination in employment, Race-based discrimination | 
In another win for employees charging discrimination, the Supreme Court decided that firefighter applicants could sue for racial discrimination whenever the City of Chicago used an allegedly discriminatory test to fill openings. A class of African-American applicants claimed that the test, and its use, had a disparate impact on African-Americans. The City rejected all applicants scoring at 65% or lower, and decided that all applicants scoring at least 89% were eligible for the next stages of testing. Those who passed the test, but did not score at least an 89, were notified that it was unlikely that they would be called for any openings.
The African-American applicants contended that the test had a disparate impact on black candidates. That is, the test had the effect of eliminating proportionately more black than white candidates. At that point, it is up to the employer to show that the test is sufficiently related to the job requirements that its disparate impact is unfortunate but acceptable.
At the Supreme Court, Chicago admitted that the use of the 89% cutoff was unlawful. It tried to convince the Court, though, that there was only one discriminatory act, the 1996 test and its use to create three groups of people: rejected, qualified, and “well-qualified.” Since no one filed charges of discrimination within 300 days of the announcements of the three lists, it contended that all claims were too late to challenge the test and its scoring.
The Court held that not only the original adoption of the practice, but also the application of the practice, were incidents of discrimination. Therefore the class members were able to file charges of discrimination each time the City used the test.
This decision, authored by Justice Scalia, was unanimous. It is limited to the kinds of actions that do not require proof of discriminatory intent, that is, practices that have the effect, presumably unintended, of discriminating against one group.
Still, it has interesting language seeming to soften the widely criticized (and legislatively dismantled) Ledbetter decision. Quite often, the procedural issues relating to timing and proof structure have monumental consequences for employment discrimination victims, so this case, limited or not, is a positive step.
Posted by marykeating on April 1, 2010 under Economic situation, Race-based discrimination, Sex-based discrimination |
The Bureau of Labor Statistics released a report breaking down unemployment rates by various characteristics, including race, gender, age, educational level, and head of household status. The report shows that unemployment rates, and length of unemployment, among African-Americans are higher across all other categories. The highest burden is felt by African-American teens, with a 41.4% unemployment rate as of February. The report points out that while unemployment is bad enough, starting a work life in such a discouraging way has long-lasting ramifications.
I find two other comparisons troubling. College graduates are more likely to be employed than other groups, but the rate of African-American unemployment is higher (.2% v.s 4.5% for whites). Another striking comparison shows that the unemployment rate among women head of households (in other words, single mothers) is higher than the rate among women generally. Black women heading households experienced an even higher unemployment rate.
The report refrains from drawing any conclusions on the reasons for these stark differences, leaving that to academics with more time to develop and test theories. Surely segregation patterns must be considered. Lingering racism and discrimination against women with childcare responsibilities are pretty good possibilities as well.
Posted by marykeating on December 6, 2009 under Race-based discrimination |
The Supreme Court surprised and dismayed people across the spectrum of employment law in June when it ruled in the Ricci v. DeStefano case. In that case, the Supreme Court held that white firefighters were entitled to proceed on their claims that New Haven discriminated against them on the basis of their race. New Haven scrapped a promotional exam, on the ground that minority applicants scored poorly on the test. New Haven feared that it would be sued by the non-selected promotional candidates; instead, by ignoring the test results, and refusing to promote from the top of the list down, it was sued by the top scorers. Employers have been chewing their fingernails since, wondering if there is a way to avoid a lawsuit.
The simple answer is that any test needs to be carefully tailored to the job duties, and narrowing down the candidates most likely to succeed in the job. There seems to be a huge range of jobs these days that require a bachelor’s degree, for no particular reason. Does this not weed out sectors of the population less likely to have afforded a college education? Similarly, the entry or the promotional exam needs to be vetted, or validated. Does a good score on the test relate to the best attributes of the successful employees? Does a firefighter really need to read quickly, or are there more important attributes to focus on?
Last week, the city of New Haven has to promote the 14 firefighters who scored well on the challenged 2003 tests. Justice can be slow, certainly, but these firefighters will advance. Public employers, especially, will also be more careful in the procedures used to decide who moves up the ranks, and how they should be selected, or trained for their eventual success. I hope that if minority candidates continue to do poorly on written tests, as a group, that employers will use other means of determining the best candidates for the job.
Posted by marykeating on October 2, 2009 under Interesting cases, Race-based discrimination |
It’s the little things that can trip you up. This is true of lots of fields, from sports to carpentry to litigation. The Supreme Court just agreed to decide a case involving one of the critical little things: the statute of limitations for filing a claim of discrimination. The Court famously decided this issue two years ago in Ledbetter v. Goodyear Tire & Rubber. It refused to allow a wage discrimination case by a woman who made less than the men in the same jobs she held. She worked for years without knowing that she was paid less than the men around her; once she learned, she filed a claim of discrimination. Since the original decision to pay her less than the men had occurred years earlier, even though the effects of that decision were perpetuated and exaggerated as the years went by, the Court held her claim came too late.
Congress reversed this decision by amending the law in January; this was President Obama’s first enactment. The Lilly Ledbetter Fair Pay Act applies to wage discrimination. Specifically, it governs a “compensation decision or other practice.” There have been some questions about how far the Lily Ledbetter law goes, but it cannot be stretched to protect the 6,000 unhappy applicants in Lewis v. Chicago.
That case will decide whether African-American applicants for firefighter positions should have filed claims of race discrimination within 300 days of the City announcing a discriminatory practice, or 300 days after the employer uses it. In the Lewis case, Chicago used a test that had a disparate impact against the African-American applicants, putting many in the “qualified” category, while most people in the “well-qualified” category were white. The applicants argued that the test did not accurately measure aptitude for firefighting, and therefore should not be used since it had the effect of weeding out African-Americans, not those who would fail at firefighting.
The applicants filed claims after the City hired from the well-qualified list; the Seventh Circuit held that they should have made claims within 300 days of the announcement of the lists. The United States has filed a brief in favor of the firefighters.
Posted by marykeating on August 18, 2009 under Constructive discharge, Race-based discrimination, Racial harassment, Sex-based discrimination, sexual harassment |
In sexual and racial harassment cases, one of the most difficult decisions an employee can make is what to do when the employer is insufficiently responsive to complaints. It’s safe to say that employers have all learned to parrot the lines “we take allegations of sexual harassment seriously,” and “racial comments are not tolerated in this workplace.” But sometimes they are. When an investigation is cursory or a farce, the complaining employee is often faced with escalated harassment, as the bullies realize they are winning, and are not happy that she called in the higher ups. If the harassment is sufficiently severe and the employee cannot tolerate the atmosphere anymore, is she free to quit? If she continues to go to work, is the atmosphere perhaps not that abusive after all? The idea of constructive discharge is commonly rejected by courts.
This is the essential conflict in the case of the Equal Employment Opportunity Commission v. Central Wholesales, Inc., a company in Laurel, Maryland. A three year employee transferred to a new department and immediately was subjected to severe racial and sexual harassment. Her coworkers used the “b” and “n” words daily, a man in an adjacent cubicle had a pornographic screensaver, and when his screen wasn’t being saved, he was watching pornography on it; the employee had to listen to it. Two male coworkers kept mop-haired dolls in nooses in their offices. She complained to the coworkers, then to her supervisor, then to the president of the company, and finally to her former supervisor. For the most part, nothing was done, and her supervisor even made a joke of her treatment. At that point, the employee left the job and was unable to return.
The EEOC brought suit on her behalf. The trial court held that the employee was not harassed as a matter of law. It decided that the sexual harassment was not severe enough, and that the employee left her job before the company could remedy the racial issues. The Fourth Circuit, often not a friend of the employment discrimination plaintiff, reversed the decision.
Under the law of harassment, an employee needs to show that the harassment was both objectively and subjectively hostile and abusive. That is, the employee must have found the atmosphere upsetting, and a reasonable person in her position would also have done so. Under the Fourth Circuit’s precedent, plaintiffs must clear a “high bar” to show that the objectionable conduct was severe or pervasive. In other words, to make out a case of sexual or racial harassment, the plaintiff has to show that there was so much unwelcome, racially or sexually charged conduct that the employment situation was altered, poisoned.
In this case, the employee did make enough of a showing that she is entitled to a trial. It is not easy to bring all the elements together, especially when the employee leaves the workplace. But at least here, the employee’s dilemma, of staying in a toxic environment for the sake of her lawsuit or quitting and preserving her mental health has not doomed her opportunity to make her claim.
