New York Fish Market Settles Race Discrimination and Sexual Harassment Lawsuit

The Equal Employment Opportunity Commission (EEOC) recently settled a discrimination suit against New York-based fish wholesaler M. Slavin & Sons, Inc. for $900,000. The EEOC filed suit in December 2009 based on complaints by more than thirty employees of physical and verbal sexual harassment. According to the EEOC’s 2009 Press Release, some of M. Slavin’s owners and managers subjected certain non-Caucasian male employees, mostly African-American, to ongoing harassment including groping, offensive sexual comments, and racial slurs.

Some employees left the company because of the harassment, and the individual who first reported the harassment further alleges that he faced retaliation from M. Slavin managers. He claims that managers instructed other employees not to associate with him and threatened his life.

The EEOC’s lawsuit, filed in U.S. District Court for the Eastern District of New York, claimed that M. Slavin violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on race, color, sex, and other protected categories. Discrimination based on sex includes sexual harassment, and it encompasses actions against any gender. The law also protects people who seek to defend their rights from retaliation by their employer, and it allows employees to make claims against employers who create a hostile work environment based on race, sex, and other protected categories.

On December 15, 2011, the EEOC announced that M. Slavin had agreed to pay $900,000 to settle the lawsuit, in addition to providing other relief. As part of the settlement, the company is required to revise its policies on sexual harassment, discrimination, and retaliation, and submit to monitoring by the EEOC for a period of five years. The Company is also required to retain an independent consultant to handle discrimination complaints and must provide one-on-one training for the owners and managers who committed the worst acts of harassment. Finally, the Company is required to provide annual anti-discrimination training for all of its owners and managers, publicize the resolution of the lawsuit to all employees at the work site, and notify the EEOC of any and all new discrimination complaints.

Race Discrimination Claim Filed Against Texas Company Alleging Rampant Use Of Racial Slurs

Race discrimination claims continue to grab headlines. In its article entitled Industrial Services Firm Faces Bias Suit, the Wall Street Journal recently reported that “[n]early 250 workers sued Turner Industries Group of Baton Rouge on Sunday, alleging racial discrimination in hiring, pay, promotions and on-the-job treatment.”

The allegations in the complaint, which numbers more than 300 pages, are especially egregious:

Robinson and his similarly situated Black co-workers have been and continue to be subjected to racially offensive graffiti displayed at Turner job sites. For example, he has seen “Nigger hang from a tree,” and “fuck you niggers, go back to Africa.” He has also seen a noose and several confederate flags hung in the bays at Turner.

Jeffery and his similarly situated Black co-workers have been subjected to racial graffiti and depictions throughout Turner facilities and job sites. The bathrooms were constantly covered in offensive comments such as, “Niggers don’t belong here,” and he has seen drawings of White people wearing KKK hats.

Jones and his similarly situated Black co-workers have been subjected to a racially hostile atmosphere at Turner’s facilities. For example, White workers would leave notes on his truck calling him “nigger” and saying, “I know you sell drugs you nigger fucker.” Jones reported these notes to management, but Turner did not do anything to stop the notes.

The Equal Employment Opportunity Commission investigated similar complaints of racial harassment at Turner Industries. In early 2010, the EEOC found that numerous instances of racial harassment occurred at the company’s Paris, Texas plant — which included the use of racial epithets and symbols of discrimination. The Dallas Morning News reported the EEOC’s findings in its article entitled,
EEOC: Black workers harassed at pipe factory in East Texas.

If you’re the victim of race discrimination and harassment, its important to act quickly to preserve your rights and hopefully put an end to the hostile work environment. Please contact us to learn more about this process and about our Firm’s special focus in this area.

Proving Workplace Discrimination Through Circumstantial Evidence: A Review Of Thermo King

Claims for unlawful workplace discrimination are typically proven through two types of evidence: direct and circumstantial. Direct evidence is often referred to as “smoking gun” evidence where, for example, a company informs an employee that he or she is being terminated because of his or her age. Circumstantial evidence is much more subtle. As a great trial lawyer once said, “We better know there is a fire whence we see much smoke rising than we could know it by one or two witnesses swearing to it. The witnesses may commit perjury, but the smoke cannot.” Abraham Lincoln, Unsent Letter to J.R. Underwood and Henry Grider, October 26, 1864. Thus, in an age discrimination case, circumstantial evidence may take the form of an older employee (who is at least 40 years old) who is terminated without explanation.

This brings us to the case of Vélez v. Thermo King de Puerto Rico. There, the employer terminated a 56 year old employee without explanation. The company finally provided a reason for the termination after the employee filed a claim for age discrimination with the Equal Employment Opportunity Commission. The employer changed its reason thereafter. The First Circuit found the employer’s initial silence to constitute circumstantial evidence of discrimination:

Thermo King did not initially provide Vélez with any reason for firing him. One month later, Soto told the ADU and the EEOC that Vélez had been fired for violating the company’s policy on receiving gifts from suppliers. It was not until over a year later that Thermo King, responding to this lawsuit, first said that Vélez had been fired for stealing and selling company property. The fact that the employer gave different reasons at different times for its action surely supports a finding that the reason it ultimately settled on was fabricated.

In my interview with Massachusetts Lawyers Weekly, I discussed the significance of the Thermo King decision:

It appears to be the first time the 1st Circuit has held that an employer’s failure to articulate the reasons for a termination before litigation equals pretext for discrimination.

Our prediction is that the Thermo King decision will encourage more transparency. Employers are now incentivized to articulate a clear reason as to why an employee is being terminated from the outset or risk an inference of discriminatory motive.

Employeees Who Suffer Workplace Discrimination Gain Clarification On Obtaining Punitive Damages

Employees who suffer workplace discrimination in violation of the Massachusetts Fair Employment Practices Act are entitled to recover four types of damages: front pay (the amount by which someone’s future earnings are reduced by discrimination), back pay (the plaintiff’s lost income from the time of the discrimination up to a jury verdict), emotional distress damages, and attorney’s fees. These damages are compensatory damages, designed to compensate the victim of discrimination for the actual harm s/he suffered and no more.

Punitive damages are another category of damages provided by the Fair Employment Practices Act for the victims of unlawful discrimination on the basis of race, color, religious creed, national origin, sex, sexual orientation, or handicap. However, not all victims of unlawful workplace discrimination are entitled to punitive damages. Recently, in the case of Haddad v. Walmart Stores, Inc. , the Massachusetts Supreme Judicial Court clarified the standard for the award of punitive damages.

In Haddad, a jury awarded punitive damages to the plaintiff for the gender discrimination that she had suffered. The trial judge, however, took away the punitive damages. The parties then filed cross-appeals, raising numerous questions of law.

On appeal, the plaintiff argued that the trial judge’s decision to take away the punitive damages was error. Simplifying a bit here, the plaintiff went on to argue that Massachusetts law permits punitive damages for intentional acts and, since discrimination is the result of intentional acts, any finding of discrimination is sufficient to support an award of punitive damages.

The Supreme Judicial Court (“SJC”) agreed with the plaintiff that the trial court’s decision to take away the jury’s award of punitive damages was a mistake. The SJC found that the the trial court judge may have based his decision on a belief that, in order to recover punitive damages, an employee must show that his/her employer acted with the knowledge that its actions violated applicable civil rights laws. The SJC said that, to the extent the judge’s order relied upon that reasoning, it was in error.

The Supreme Judicial Court went on to clarify the circumstances under which a victim of unlawful discrimination may recover punitive damages. The SJC held that punitive damages in a discrimination case may be awarded only where the defendant’s conduct is outrageous or egregious. In determining whether the defendant’s conduct is outrageous or egregious, a judge or jury should consider several factors, including but not limited to:

(1) whether there was a conscious or purposeful effort to demean or diminish a class of which the plaintiff is a member (or the plaintiff because he or she is a member of a class);
(2) whether the defendant was aware that the discriminatory conduct would likely cause serious harm or recklessly disregarded the likelihood that serious harm would arise;
(3) the actual harm to the plaintiff;
(4) the defendant’s conduct after learning that the initial conduct would likely cause harm; and
(5) the duration of the wrongful conduct and any concealment of that conduct by the defendant.

The Supreme Judicial Court suggested these five factors do not exhaust the list of considerations that may be relevant to an award of punitive damages in a discrimination case, but they do help clarify what an employee who is the victim of workplace discrimination should show if she hopes to recover punitive damages against her employer.
You can watch a video of the oral arguments in the Haddad case on Suffolk Law’s website.

Race Discrimination and Sexual Harassment Lawsuit Filed Against NASCAR

One of the most egregious fact patterns in a race discrimination case has presented itself against NASCAR. Maurica Grant, 32-year-old black female, worked as a technical inspector from January 2005 until her termination in October 2007. During her employment, Grant was allegedly subjected to a panoply of racially hostile and offensive conduct, which included:

Being called “Nappy Headed Mo” and “Queen Sheba” by her co-workers
Being told she worked on “colored people time”
Enduring references to the Ku Klux Klan made by one particular race official
Being asked, “Does your workout include an urban obstacle course with a flat-screen TV on your back?”
Being forced to work outside more often than white male officials because her supervisors believed she couldn’t sunburn because she was black
Being instructed to duck as she passed race fans in the backseat of a carpool with one race official stating, “I don’t want to start a riot when these fans see a black woman in my car”
Being told, “Keep smiling and pop your eyes out ’cause we can’t see you.”
Being accused of being gay when she rejected the sexual advances of co-workers

NASCAR allegedly terminated Grant approximately two months after she complained about how she was treated. For more information, please visit the Chicago Tribune article entitled, Mauricia Grant, NASCAR.

Retaliation Claims Recognized: Employees Victimized by Discrimination Gain Victory Before Supreme Court

Employees recently scored two major victories before the United States Supreme Court. Both cases involved allegations of workplace discrimination. In each case, the Supreme Court recognized an employee’s right to bring claims for retaliation where reports of unlawful discrimination result in a backlash by the employer.

In Gomez-Perez v. Potter, Myrna Gómez-Pérez worked as a clerk for the United States Postal Service in Puerto Rico. During her employment, Gómez alleged that she was subject to retaliatory treatment after filing an age discrimination complaint against her supervisors under the Age Discrimination in Employment Act (ADEA). The federal district court of Puerto Rico granted summary judgment to USPS, reasoning that the United States had not waived sovereign immunity as to retaliation claims under the ADEA. Gómez appealed to the First Circuit Court of Appeals, which disagreed on the sovereign immunity issue but dismissed the retaliation on the basis that the ADEA does not recognize such claims by federal employees.

In CBOCS West, Inc. v. Humphries, Hendrick Humphries, who is African-American, worked as an associate manager at Cracker Barrel. Following his termination, Humphries filed suit based on race discrimination and retaliation under Section 1981 of the Civil Rights Act of 1866. The main issue was whether Section 1981 recognizes a claim for retaliation. While Humphries lost his case in federal district court, the Seventh Circuit Court of Appeals held that Section 1981 protects against retaliation.

In both cases, the Supreme Court refused to restrict employee rights, and affirmed the viability of workplace retaliation claims under the Age Discrimination in Employment Act and Section 1981 of the Civil Rights Act of 1866. For more information about the Supreme Court’s decisions, please visit the New York Times article entitled, Justices Favor Workers in Cases of Bias Retaliation.

Second Circuit Recognizes Associational Discrimination Claim Based on Race

Employment discrimination laws prohibit adverse employment actions, such as termination or demotion, based on race, gender, religion, disability, and certain other protected categories. More recently, the courts have had to grapple with claims of “associational discrimination.”

The Second Circuit’s recent ruling in Holcomb v. Iona College recognized the viability of such claims. In that case, the plaintiff worked as an assistant coach of the Iona College basketball team. Iona College eventually fired Holcomb, claiming that his termination had to do with his poor job performance. Holcomb, who is white, believed that he was fired because his wife is African-American. While the district court granted summary judgment for Iona (i.e., dismissing the case), the Second Circuit remanded on appeal.

The issue before the Second Circuit was one of first impression: Can an an employer violate Title VII if it takes action against an employee because of the employee’s association with a person of another race? The court rejected Iona’s reasoning and answered this question in the affirmative:

We reject this restrictive reading of Title VII. The reason is simple: where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race. All the district judges in this circuit to consider the question, including the district court in this case, have reached that conclusion.

In reaching its decision, the court also noted the egregious conduct that the plaintiff endured from Iona’s Director of Athletics, Richard Petriccione:

Early in his tenure as an assistant coach, Holcomb claims to have heard Petriccione say: “[E]verybody at Fordham thinks they have these good black kids, and Iona has niggers.” A year later, when several black members of the Iona Gaels were accused of stealing and selling telephone access codes, Petriccione allegedly told Holcomb that the basketball program needed to “keep [its] niggers in line.” Colleagues at Iona testified to Petriccione’s record of what might, charitably, be called racial insensitivity. Egregiously in this respect, Petriccione is said to have referred to a Nigerian employee at the Alumni Giving Office as a “jungle bunny” and an “African princess.” When that member of staff applied to his office for the position of Assistant Director of Annual Giving, he remarked: “[W]hat does she think she is coming from a hut in Africa and thinking she could apply for this job?” The most striking of the allegations against Petriccione relates directly to Holcomb and his wife. Plaintiff testified that in February 2000, he asked Petriccione whether he had received the wedding invitation that Holcomb and Gauthier had sent him. According to Holcomb, whose claim is backed up in this respect by a third party, Petriccione replied: “[Y]ou’re really going to marry that Aunt Jemima? You really are a nigger lover.”

In recognizing associational discrimination claims based on race, the Second Circuit joins the Sixth, Fifth, and Eleventh Circuits.

Race Discrimination Suit Brought Against Clifford Chance and Sullivan & Worcester

Both the law firms of Clifford Chance and Sullivan & Worcester find themselves defending allegation of race discrimination. According to the Wall Street Journal’s law blog, Caroline Memnon, a black Haitian woman, brought suit on March 18, 2008 in the Southern District Court of New York. Memnon claims:

From inception, the CC partners failed to provide me with meaningful work. I was afforded a series of pointless reviews… where those performing the review declared that despite my obvious intelligence the practice of law “was not for someone like me.”

Clifford Chance terminated Memnon in 2002 and, according to Memnon, the firm “surreptitiously ‘blackballed’ [her] within the community of New York law firms.” In early 2007, Memnon began working at Sullivan & Worcester, which terminated her employment just months in March 2007. Sullivan & Worcester is a co-defendant in the suit.

Job Discrimination Complaints Jump 9%

Workplace discrimination complaints by employees against private employers to the Equal Employment Opportunity Commission (EEOC) rose by 9% last year, signifying the largest annual increase since the early 1990s. The EEOC reported that complaints increased to 75,768 during the 2006 budget year, up from 75,428 in the previous year. Discrimination complaints based on race, retaliation, and sex were the most common. Below is an overview:

Race discrimination complaints totaled 27,238; about 35.9% of all EEOC filings

Sex discrimination complaints totaled 23,247; about 30.7% of all EEOC filings

Retaliation complaints totaled 22,555; about 29.8% of all EEOC filings

Handicap discrimination complaints totaled 15,625; about 20.6% of all EEOC filings

Age discrimination complaints totaled 13,569; about 17.9% of all EEOC filings

Sexual harassment complaints totaled 12,025; about 15% of all EEOC filings

National origin discrimination complaints totaled 8,327; about 11% of all EEOC filings

Religious discrimination complaints totaled 2,541; about 3.4% of all EEOC filings

(It is not uncommon for employees to suffer more than one type of discrimination, which is why the total exceeds 100%)

Age discrimination and handicap discrimination complaints recorded double-digit percentage increases. Complaints about discrimination based on pregnancy also rose by 14% to 5,587. In 2006, the EEOC was successful in recovering $274 million in compensation for employees reporting discrimination. The Washington Post reported on these figures in an article entitled, Job Discrimination Filings Rise in 2006

Race Discrimination Reports to the Equal Employment Opportunity Commission (EEOC) rose in 2007

Reports of race discrimination rose in 2007. The Equal Employment Opportunity Commission (EEOC) registered an increase of 24% from 2006. Complaints rose from 5,646 in 2006 to 6,977 in 2007. In an article entitled, Racial harassment cases rise sharply, USA Today reveals the changing face of race discrimination:

“Nooses are more prevalent,” says EEOC chair Naomi Earp. “The noose has replaced the N-word … as the choice if you want to threaten or intimidate someone.”

As race discrimination continues to rise, so will lawsuits. Last week, Judge Thelton Henderson of the U.S. District Court for the Northern District of California preliminarily approved Morgan Stanley’s $16 million proposed settlement for a racial-bias class action filed on behalf of 1,200 African-American and Latino brokers. In an article entitled Morgan Stanley $16 Million Race Bias Settlement Gets Prelim OK, CNN Money reported on some of the non-monetary aspects of the settlement:

Morgan Stanley agreed to settle alleged discrimination claims by setting up a $16 million settlement fund and establishing programs to boost diversity in its work force. The firm has agreed to work with industrial psychologists to develop hiring, retention and development initiatives for African-American and Latino financial advisers and broker trainees.

Merrill Lynch & Co., the largest retail brokerage house in the United States, is also facing a similar race discrimination suit from African-American brokers.