Posted by marykeating on June 18, 2011 under Race-based discrimination | 
A recent case from the local District Court, just affirmed by the Fourth Circuit (the opinion was by retired Justice O’Connor), emphasizes the difficulty of establishing discrimination in workplaces where the discrimination takes the form of “death by a thousand cuts.” A Haitian worker, Geraldine Lauture, alleged that she was disciplined more severely than white employees for her infractions, particularly after an altercation with a white worker. But the employer hospital showed that some white employees had been given the same discipline for the same infraction, and therefore a finding of discrimination was impossible. The District Court stated it this way: “a consideration of the whole record, and not simply of individual cases within it,” allowed the employer to show that certain white employees, who may not have been known to the plaintiff, were also disciplined with the same measures.
The Court further refused to engage in a factual inquiry whether the errors the hospital said the employee made were really made. The hospital “is not required to conclusively substantiate her poor performance, only that it reasonably believed her performance to be deserving of discipline.”
We often see employers papering the files of employees before terminating them. This is good practice, it forces employers to deliberate over their decisions, and ideally precludes discriminatory decisions on demotions, discipline and termination. On the flip side, it provides a safety hatch for biased supervisors. All they have to do is write up the employee for infractions, real or imagined, and they insulate themselves from charges of bias, as federal courts routinely shrink from investigating too deeply. With the recent Supreme Court decision on the “cat’s paw,” there is still an avenue to investigate the bias of the person providing the write-ups, but it is not enough to show that the allegations were untrue.
Posted by marykeating on April 27, 2011 under Race-based discrimination |
Yesterday the Fourth Circuit overturned, partially, an employer win at the trial court. The case came up in the context of a racial harassment case involving several African-American employees. In the Equal Employment Opportunity Commission v Xerxes Corporation, The EEOC sued on behalf of several named employees and a class of people affected by the hostile work environment. In reading about the company’s response, the frustration of dealing with such a workplace becomes clear. Various people called employees offensive names, but as the company’s discipline ratcheted up, the harassment became anonymous and more sinister. The black employees received anonymous messages, drawings of figures in nooses, references to the KKK, and general hostility. Although the local sheriff got involved, no one discovered who had delivered the messages. When anyone specific was called on the carpet, though, he or she dutifully apologized and took anti-harassment training. Some were suspended, and more were warned that any further incidents would lead to termination.
The Fourth Circuit held that once the company did get involved, its response was acceptable. While the best outcome, of course, is for all of the harassment to stop, when an employer promptly investigates and takes steps designed to stop the racially charged behavior, it is insulated from a lawsuit. Here, though, the company took too long to respond to the first complaints, and will have to go to trial.
While this reversal permitting a trial is a welcome departure from the Fourth Circuit’s usual affirming of summary judgment, there is some troublesome language in the decision. Several racial epithets are referred to as “isolated” remarks, code for “we are not going to worry about a little bit of discrimination, just a lot.” Yet another employee’s testimony was discounted for being too general. The court faulted him for not having detail, context, examples, and time frames.
Posted by marykeating on December 22, 2010 under Race-based discrimination |
Yesterday, the U.S. Equal Employment Opportunity Commission sued Kaplan Higher Education Inc. for race discrimination, based on its practice of using credit reports to winnow out job applicants. The EEOC filed a class action suit in federal court in Ohio, alleging that the credit report use is more likely to single out African-American candidates.
As with job testing, employers need to be careful to tailor their screening requirements to the needs of the job. Courts are more likely to accept a bank’s argument that people with poor credit histories might pose a risk of embezzlement than the same argument from a schoolteacher.
With the enormous numbers of layoffs and foreclosures, the credit reports of many hardworking, talented people have taken a hit. Unemployment rates are higher among minority groups, leading to the disparate impact identified by the EEOC.
Posted by marykeating on November 10, 2010 under Pending legislation, Race-based discrimination |
The Equal Employment Opportunity Commission has taken a harder look at the practice of checking the credit of potential employees. The EEOC held a hearing last month to get a variety of viewpoints on the issue. The human aspect cries out for reform. As high unemployment continues, many people have suffered dings or worse to their credit report. A repossessed car, late payments on credit card, a foreclosure, all make a credit report look bad. But if these were caused by unexpected unemployment, does the negative rating predict a bad employee? One might say that no, having been through these hardships someone may work hard to be the best, and avoid another layoff.
The employer’s point of view often hinges on the possibility that the credit report may flag someone with a history of money problems, which may indicate the embezzler-to-be. There are some problems with this logic. First of all, many employees are not in the position to deal with the employee’s money. Secondly, skilled embezzlers probably do not have money problems of the kind that show up on credit reports. Third, the use of credit reports weeds out African-Americans and Hispanics at a disproportionate rate, according to the EEOC. It may also hurt recently divorced women, young workers, and people who have had large medical bills.
Speakers at the hearing mentioned that the Fair Credit Reporting Act has safeguards, including requiring the applicants to authorize the check, and requiring the employer who used the report to reject the application to say so. Cold comfort to an applicant faced with a sign this or else ultimatum.
http://www.eeoc.gov/eeoc/meetings/10-20-10/index.cfm
Using such a blunt tool does not belong in a meritocracy. A law pending in Congress, the Equal Employment for All Act, would add safeguards but still allow use of credit reports to screen applicants for a few categories of jobs, such as national security and financial institution supervisors. It is languishing in the House, although a hearing was held by the Subcommittee on Financial Institutions and Consumer Credit.
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.
