Category Archives: Race discrimination

Race Discrimination Victim Prevails Before the Eleventh Circuit

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In an unusual but welcome move, the U.S. Court of Appeals for the Eleventh Circuit in Ash v. Tyson Foods has reversed its own decision in a race discrimination case. The court had overturned a jury verdict against Tyson Foods related to employment bias at a plant in Gadsden, Alabama. A brief filed by a retired Alabama federal judge and a group of civil rights leaders urged the court to reconsider its ruling. More than a year after its last ruling, the court reversed itself, albeit grudgingly. The New York Times’ coverage on the decision can be viewed here.

This case has made its way through the appellate courts several times over the years. Two black employees at the Tyson plant, Anthony Ash and John Hithon, alleged discrimination based on race when they were passed over for promotion in favor of two white employees. The plaintiffs further alleged that their manager created a hostile work environment by frequently referring to adult black male employees as “boy.” They filed suit based on, among other causes of action, Title VII of the Civil Rights Act of 1964. When the case went to trial in 2002, the jury awarded the plaintiffs over $1.4 million in compensatory and punitive damages.

Following the jury verdict, the employer first appealed the case to the Eleventh Circuit. A three-judge panel of the Eleventh Circuit unanimously affirmed in part and reversed in part, finding that the evidence presented at trial was not sufficient to establish unlawful discrimination or to support the damage award. It held that the manager’s use of the word “boy,” in the absence of an adjective such as “black” or “white” is not in and of itself evidence of discriminatory intent. In 2006, the Supreme Court unanimously vacated the Eleventh Circuit’s ruling and remanded the case, rebuking the court for its finding regarding the manager’s language. The Supreme Court’s per curiam opinion noted that the circuit court should have considered factors like “context, inflection, tone of voice, local custom, and historical usage.”

At this point, Hithon pursed the case on his own, without Ash. When the Eleventh Circuit heard the case again, this time in 2010, it reached a conclusion similar to its earlier finding. In a 2-1 ruling, the court held that the manager’s use of the word “boy” was “conversational” and “nonracial in context,” and it once again mostly reversed the trial court’s verdict. Once again, the Eleventh Circuit’s controversial ruling caught the attention of the New York Times in this article.

The Eleventh Circuit’s new ruling once again overlooked evidence beyond the words themselves. Testimony at trial by the plaintiffs and other witnesses established the connotation that the word “boy” evinces. Ash, for instance, told the jury that “being in the South, and everybody know [sic] being in the South, a white man says ‘boy’ to a black man, that’s an offensive word.”

Pepsi Settles Federal Race Discrimination Claim

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Pepsi Beverages reached a settlement agreement with the Equal Employment Opportunity Commission (EEOC), in which it will pay $3.13 million and modify its training and hiring processes based on allegations of racial discrimination. An investigation by the EEOC found evidence that Pepsi’s use of criminal background checks during the hiring process had an adverse and disproportionate impact on black job applicants. Under Pepsi’s policy, job applicants who had been arrested pending prosecution were refused job offers, even if they had not been convicted. In addition, Pepsi’s policy denied employment to job applicants arrested or convicted of particular minor offenses. The EEOC found that Pepsi’s policy disproportionately impacted more than three hundred individuals.

This case demonstrates how a policy that is not specifically intended to discriminate may still violate anti-discrimination laws. Disparate impact gives rise to liability where a facially neutral employment practice or policy, that serves no purpose in promoting a legitimate business interest, disproportionately affects employees in a certain protected class. Under this framework, proof of discriminatory animus is unnecessary.

The Supreme Court’s ruling in Griggs v. Duke Power Co., which was decided just two years after race discrimination in the workplace became illegal, is a prime example. There, the company required job applicants to obtain a high school education or to pass a standardized general intelligence test as a condition of employment. At the time, these requirements disproportionately affected black applicants. In considering whether this policy violated Title VII, the Court stated “the consequence would appear to be directly traceable to race,” noting that blacks “have long received inferior education in segregated schools.” Finally, the Court found that “neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used.” For these reasons, the policy violated Title VII.

Similar to Title VII, the Massachusetts Fair Employment Practices Act (M.G.L. c. 151B) recognizes disparate impact claims. In School Committee of Braintree v. MCAD, for instance, a female teacher brought a sex discrimination claim under the disparate impact framework. There, the school relied on a policy and denied the plaintiff the ability to use her accumulated sick time during her maternity leave. In sharp contrast, the school had allowed the use of accumulated sick time for reasons other than pregnancy such as Peace Corps work and military service. The Massachusetts Commission Against Discrimination found the school’s policy had a disparate impact on women. The Supreme Judicial Court agreed:

Unlike leaves of other kinds, maternity leave possesses an essential character of being medically necessary. During several weeks of maternity leave a woman, by necessity, is physically disabled and incapable of performing her job. No comparable situation exists with respect to men.

The Boston race discrimination lawyers at The Law Office of Alan H. Crede, P.C. specialize in employment law and solely represent employees. If you are a victim of race discrimination, please contact The Law Office of Alan H. Crede, P.C. through our website or at (617)973-6434 to schedule a confidential consultation.

More Race Discrimination Blog Posts by The Law Office of Alan H. Crede, P.C.:

New York Fish Market Settles Race Discrimination and Sexual Harassment Lawsuit, Boston Employment Lawyer Blog (December 28, 2011)
Race Discrimination Claim Filed Against Texas Company Alleging Rampant Use Of Racial Slurs, Boston Employment Lawyer Blog (February 7, 2011)
Race Discrimination and Sexual Harassment Lawsuit Filed Against NASCAR, Boston Employment Lawyer Blog (June 26, 2008)

New York Fish Market Settles Race Discrimination and Sexual Harassment Lawsuit

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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

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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

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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

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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

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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.

Sexual Harassment and Race Discrimination Claims Against Tavern on the Green Settled for $2.2 million

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The Equal Employment Opportunity Commission (EEOC) recently finished prosecuting a case involving severe sexual harassment as well as gender and race discrimination against New York’s landmark restaurant, Tavern on the Green. According to the EEOC, Tavern on the Green subjected female, black, and Hispanic employees to continual lewd and degrading conduct. Female employees were allegedly forced to endure demands for sexual acts as well as various forms of groping and inappropriate touching. Black and Hispanic employees also allegedly experienced racial epithets and ridicule for their accents.

The EEOC, which brought the suit on behalf of 50 employees, was successful in securing a settlement of $2.2 million. As part of the settlement, Tavern on the Green is also required to establish a telephone hotline for employees to report discrimination complaints. In its Press Release, EEOC New York District Director Spencer H. Lewis made clear the duty that employers owe to their workers:

This case should remind employers to take seriously allegations of harassment and retaliation, especially where managers in positions of authority are involved in the misconduct.

According to Professor Marcia McCormick of Cumberland School of Law (Samford University), the lawsuit signified a victory for the EEOC’s EEOC’s E-RACE Initiative (Eradicating Racism and Colorism from Employment), which was launched in 2008 to eliminate race discrimination from the workplace by enhancing public awareness and through litigating unlawful employment practices.

For more information, please visit the New York Times’ article entitled, Tavern on the Green to Pay $2.2 Million to Settle Harassment Claim.

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

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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

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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.