Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘race discrimination’

Federal judge concludes transgender worker can sue for sex discrimination

Wednesday, December 21st, 2016

A federal court in Kentucky is allowing a transgender workplace discrimination suit to proceed, recognizing that mistreatment in regards to gender identity constitutes illegal discrimination on the basis of sex.

Plaintiff Mykel Mickens sued General Electric Appliances (GE) for harassment and disparate treatment in the workplace. He was not permitted to use the men’s restroom, so he had to use a facility much farther away from his work station, and he was then disciplined for how long his breaks were to accommodate that journey. Mickens also had a conflict with an employee, but though GE addressed a complaint one of his white, female colleagues had with that employee, his complaint went unaddressed. He says that when he disclosed that he was transgender to his supervisor, he was singled out and reprimanded for conduct no one else was reprimanded for, and when he reported the harassment, GE said there was nothing it could do.

Federal Chief Judge Joseph McKinley, a Clinton appointee, concluded that there was significant evidence to bring a discrimination case for race and gender discrimination. He agreed there is precedent that punishing an employee for failing to conform to gender stereotypes can qualify as gender discrimination under Title VII. “Significantly,” he wrote, “Plaintiff alleges that GE both permitted continued discrimination and harassment against him and subsequently fired him because he did not conform to the gender stereotype of what someone who was born female [sic] should look and act like.”

McKinley noted that several court cases, including G.G. v. Glouchester County School Board?—?currently before the Supreme Court?—?could impact future trans discrimination suits. In the meantime, however, “what is clear is that the Plaintiff’s complaint sufficiently alleges facts to support discrimination or disparate treatment claims based upon race and gender non-conformity or sex stereotyping.”

GE did not comment directly on the suit but reaffirmed in a statement its commitment to “creating, managing and valuing diversity in our workforce” and “ensuring that our workplace is free from harassment.”

McKinley’s ruling isn’t an automatic victory for Mickens, but it is a sign of progress for those seeking the justice system’s protection for discrimination against transgender people.

Just last week, a transgender man in Louisiana won his discrimination complaint against his employer through arbitration. Tristan Broussard involuntarily resigned from the financial services company he worked for when he was intolerably forced to “act and dress only as a female.” He was awarded more than a year’s salary as well as additional damages for emotional distress.

The Obama administration has extended protections to transgender people in various ways, including advocating for their civil rights in employment discrimination cases. Many advocates worry the Trump administration will roll back these protections and abandon support for these plaintiffs, if not take an antagonistic position against their discrimination claims.

A recent massive survey of transgender people found that 16 percent had lost a job due to being transgender, and 27 percent had either been fired, denied a promotion, or not been hired due to being transgender.

This article was originally posted at Thinkprogress.org on December 13, 2016. Reprinted with permission.

Zack Ford is the LGBT Editor at ThinkProgress.org. Gay, Atheist, Pianist, Unapologetic “Social Justice Warrior.” Contact him at zford@thinkprogress.org. Follow him on Twitter at @ZackFord.

Black Livelihoods Matter: The Civil Justice System Needs Reform Too

Friday, October 14th, 2016

downloadThe Black Lives Matter movement has brought much-needed attention to the disparity in the way our criminal justice system treats African Americans.

But there’s another side of American justice that matters too: our civil courts.

In the United States today, the civil justice system is the last line of defense for workers who have faced discrimination on the job. And not just for individuals, either. Lawsuits and the threat of lawsuits have been the most effective way to force recalcitrant employers to take action against discrimination.

Still, our courthouses are not open to all. As a black lawyer who focuses on employment discrimination, I’ve seen first-hand how access to the courts, the racial makeup of law firms and the way cases are handled can throw up barriers to justice.

Here’s a step-by-step guide to how black workers’ cases get derailed.

Step 1: Black workers are more likely to represent themselves.

Few people can afford to pay an employment attorney up front. Instead, most lawyers in the field work on contingency—meaning they will only get paid if the worker receives a cash award. That makes these cases financially risky for lawyers, who might get nothing for hours of work if the case is dismissed. As a result, it can be hard for many workers to find an employment lawyer.

But for black workers, the problem is even worse. A study commissioned by the American Bar Association found that black plaintiffs are 2.5 times more likely than white plaintiffs to file employment discrimination claims pro se, or without a lawyer. Other racial minorities, including Hispanics and Asians, are 1.9 times more likely to file pro se than their white counterparts.

Winning an employment case is already difficult, even under the best circumstances. Pro se litigants, assuming that they can even get their cases inside a courtroom, are almost guaranteed to lose—no matter how strong the details of their case may be.

For example, litigants may be required to file their case with the Equal Employment Opportunity Commission within a certain number of days, and that time limit varies by state. Workers representing themselves may miss that deadline, and lose their cases before they even start.

Step 2: Attorneys are less likely to take cases involving black workers.

Even when black workers have found an attorney who might be interested in their case, they are less likely to get help. The ABA study found that the way employment attorneys screen their cases can contribute to the racial disparity.

In some cases, employment attorneys charge expensive consultation fees before considering a potential client. Black workers who can’t afford those fees never get in the front door. In other cases, the ABA study found that attorneys favored clients based on criteria that weren’t related to the merits of their case, such as perceived demeanor, mannerisms or a personal referral.

The disparity in pay between black and white workers adds to the problem. Because lost wages are a major part of the case, workers who make less money will receive smaller payouts. For employment attorneys who have to work for free upfront, that means less money at the back end.

Step 3: Juries aren’t always sympathetic to black workers.

Even when employment cases make it to trial, the worker still has only a 15 percent chance of winning, compared to a 50 percent win rate for other types of plaintiffs.

That means employment cases are particularly sensitive to jurors’ beliefs and prejudices. If a jury does not find the plaintiff’s story credible, or doesn’t believe that discrimination occurred, or doubts whether discrimination is all that common anyway—the worker loses.

In addition, damages for emotional distress are allowed in many employment discrimination cases. But jurors may not be as willing to provide them to black workers even when they have found in favor of them overall due to prejudices about their mythical inner strength or whether discrimination is serious.

The end result is that the same discrimination that black workers face in the workplace can also negatively affect them in the eyes of a jury.

Step 4: Even if they win, they are often awarded less money.

Workers who win their cases can receive money for emotional distress, punitive damages intended to send a message to the employer and lost wages. Under federal law, those first two amounts are limited between $50,000 and $300,000, levels set in 1991 that have not been adjusted since. (If they had been pegged to the Consumer Price Index, the cap would be closer to $525,000.)

Generally, the largest award in employment cases is for lost wages. Employees who win their cases can only get the difference between what they made since being illegally fired and what they would have made had they not been fired.

Black employees, on average, make less than white employees. As a result, black employees bringing discrimination cases are disproportionately affected by caps for damages for lost wages. This means that these employees have less leverage to negotiate an out-of-court settlement with employers prior to trial because of the low risk to the employer of having to pay a significant judgment—if the employee prevails at trial. As a result, employers may have less incentive to adequately address discrimination against black employees.

The deep-seated flaws in our civil justice system cannot be ignored. It’s a problem that needs to be addressed by employers, legal professionals, and lawmakers. There needs to be a serious examination as to why black employees who have often been unlawfully excluded from the workplace are then again denied recourse through the legal system.

This article originally appeared on the Huffington Post on October 10, 2016. Reprinted with permission. 

Phillis h. Rambsy is a partner with the Spiggle Law Firm, which has offices in Arlington, Virginia, Washington, D.C., and Nashville, Tennessee. Her legal practice focuses on workplace law where she represents employees in matters of wrongful termination and employment discrimination including racial discrimination, pregnancy discrimination, and other family-care issues such as caring for a sick child or an elderly parent. To learn more, visit www.spigglelaw.com.

We’ve Finally Reached 2016 African American Women’s Equal Pay Day

Friday, August 26th, 2016

 

elizabeth-kristen

Today we commemorate “African American Women’s Equal Pay Day,” the day in the year when African American women’s wages finally catch up to what men earned last year.  It is important to note that African American Women’s Equal Pay Day comes nearly four months after “Women’s Equal Pay Day,”which included wages of women of all races, and was marked on April 12th of this year.  The four-month lag signifies the nearly 20-cent wider wage gap African American women face when compared to women of all races.  So, while the average wage gap for all women in the United States is 79 cents for every dollar a man makes, African American women’s wages are at just 60.5 cents on the dollar.  African American lesbian couples, who doubly experience the high wage gap (plus discrimination based on sexual orientation), have triple the poverty rate of white lesbian couples.

Eliminating the racial gender wage gap would provide concrete economic benefits to African American women. To give a concrete example, women could buy nearly three years of food for their families or pay rent for nearly two years with those additional wages.  Given that so many African American women and their families are struggling to make ends meet, receiving equal pay would make a life-changing difference.

Harriet Tubman portrait

Last year, California passed one of the strongest equal pay laws in the country, the California Fair Pay Act of 2015, which strengthened protection for workers who discuss or ask about their wages and the wages of others.  It also protects women who challenge gender based pay differences in jobs that are “substantially similar” to theirs.  For example, a female housekeeper who is being paid less than a male janitor could remedy the pay difference since the jobs are so similar and wage inequality would likely be unjustified.  The California Labor Commissioner is charged with enforcing the California Fair Pay Act.

This year, California State Senator Hall has introduced SB 1063, the Wage Equality Act of 2016, which would add race and ethnicity to California’s strong Fair Pay Act.  Under SB 1063, California employers would be prohibited from paying workers less for substantially similar work based on race or ethnicity.  An African American woman thus might have a claim that she is being paid less based not only on sex, but on race as well.  With SB 1063, she would be able to more effectively address racial wage inequality.

Certain cities already are specifically addressing wage inequality by sex, race and ethnicity.  For example, in San Francisco, city contractors will have to disclose data on what they pay their workers, broken down by both sex and race, to the City.  California state contractors may also be required to submit similar pay data reports under another bill that should reach the governor’s desk for approval.  And the federal Equal Employment Opportunity Commission intends to revise its Employer Information Report (EEO-1) data collection to include salary information based on ethnicity, race, and sex.

Our current laws against sex and race discrimination have proven inadequate to end race- and sex-based unequal pay since the pay gap remains depressingly large more than fifty years after passage of federal civil rights laws in these areas. Pay disclosure rules are an important step towards closing the pay gap for women and women of color in particular. They force employers to self-audit and identify unjustified pay disparities.  In the event they do not correct the disparities, disclosure enable government agencies to conduct targeted enforcement of equal pay laws.

It will reportedly be more than a decade before the first African American woman (Harriet Tubman) graces the face of U.S. currency.  With these new laws there is hope that before the Tubmans arrive, African American women will already be receiving the full value of those $20 bills and not just 60 percent.

The Legal Aid Society-Employment Law Center together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

This article was originally posted at CelaVoice.org on August 23, 2016. Reprinted with permission.

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid Society – Employment Law Center.

Unfortunately, our “post-racial” society isn’t post-bias

Tuesday, January 6th, 2015

Amy SemmelAccording to a recent study by MTV, the majority of millennials believe that they live in a “post-racial” society.  They cite Barack Obama’s presidency as a great achievement for race relations.  Having a black President even influenced a majority of the study participants to believe that people of color have the same opportunities as white people.  Unfortunately, employment statistics say otherwise. Since 1972 –when the Federal Reserve began collecting separate unemployment data for African-Americans — the black unemployment rate has stubbornly remained at least 60% higher than the white unemployment rate. The gender pay gap has barely budged in a decade, with full-time women employees being paid 78% of what men were paid.  And the gap is worse for women of color, with Hispanic women laboring at the bottom, with only 54% of white men’s earnings. 70% of Google employees are male, with only 2% Black, 3% Latino, and 30% Asian. This from the company whose motto is “Do no Evil.” How can this be? While overt racism or sexism is rarer today in corporate America, implicit biases linger.

Imagine that you are supervisor, with two virtually identical resumes on your desk.  Both candidates are equally qualified.  Do you gravitate toward the one with a white Anglo-Saxon name (think “Emily” or “Brendan”), or a name more likely to belong to an African-American (think “Lakisha” or “Jamal”)? Aware of their bias or not, hiring managers are 50% more likely to call the applicant with the white-sounding name in for an interview.  There is a growing body of research like this that proves that implicit bias is real and is having real-life consequences for people who are considered “other” in terms of race, disability, sexual orientation and other characteristics. (There are even on-line tests you can take to find out about your own implicit biases.)  But even as our understanding of how implicit bias leads to discrimination grows, judges often fail to recognize that discrimination can result from unconscious stereotypes or subtle preferences for people similar to oneself—perhaps today even more than overt bigotry.  To truly provide equal opportunity for all, social science research into how people actually behave in the workplace must inform the enforcement of anti-discrimination laws.

This article originally appeared in celavoice.org on December 4, 2014. Reprinted with permission.

About the author: Amy Semmel devotes her practice to eradicating discrimination and retaliation in the workplace. She advocates for employees seeking remedies for retaliation for whistleblowing, discrimination and wage theft. Ms. Semmel is frequently invited to speak at conferences and seminars throughout the state. Subjects on which she has spoken include discovery issues in employment litigation; liability of successor, electronic discovery, alter ego and joint employers; the Private Attorney General Act, and developments in wage and hour law.

Hotel Workers Stiffed Millions In Wages, Lawsuit Alleges

Tuesday, January 10th, 2012

Dave JamiesonMore than a dozen low-level hotel workers in Indianapolis have filed a class-action lawsuit against ten of the city’s hotels and a labor staffing agency, claiming they were routinely cheated out of pay with the knowledge of hotel management.

The workers — most of them Hispanic immigrants employed as housekeepers, dishwashers and bussers — say they were forced to work off the clock and through their unpaid breaks, sometimes pushing their earnings below the minimum wage of $7.25 per hour. The suit could potentially involve more than a thousand workers and millions of dollars in claims, according to the hotel workers union UNITE HERE, which is organizing workers in Indianapolis.

The employees named in the suit worked for a labor agency called Hospitality Staffing Solutions (HSS), which provides lower-rung workers to hotel companies like Hyatt on a temporary basis in cities across the country. On its website, HSS declares itself a client’s “secret weapon for improving service while cutting costs — 12% annually, on average.”

A HuffPost report in August chronicled how the outsourcing of work to HSS has led to a two-class system within certain hotels, as lesser-paid agency workers toil alongside better-compensated direct hires. Several Indianapolis hotel workers told HuffPost then that the agency shorted them on their wages and threatened them with dismissal if they couldn’t finish their work in the allotted time. The CEO of HSS said at the time that any instances of unpaid wages were honest mistakes and that the company took the allegations seriously.

Management at Georgia-based HSS could not immediately be reached for comment. This isn’t the first time the company has been sued by workers. A former manager in Pittsburgh once filed a lawsuit claiming he was fired because he stood up for housekeepers who weren’t being paid what they were owed. The company has also been criticized for an advertisement it ran in a hotel trade publication that showed tiny workers inside a vending machine, apparently ready for purchase.

The HSS-staffed hotels named in the Indianapolis lawsuit include Embassy Suites, Marriott, Westin, Hyatt, Holiday Inn and Omni properties.

Martha Gonzalez, 28, one of the workers now suing, tells HuffPost she worked at Hyatt and Marriott properties as an HSS employee earning the minimum wage. She says that she was required to come in early and prepare her housekeeping cart before punching in, and that she often wound up working through her lunch break or clocking out to finish work at the end of the day, to avoid being punished. She says she quit last summer.

“I was sick of getting a check that didn’t meet my family’s needs,” Gonzalez, who’s from Mexico, says through a translator. “Every check was just too small. I was so tired of working in a place under pressure, getting calls from the manager, ‘Are you finished? Are you finished?'”

Plaintiff Anastasia Amantecatl, who worked for HSS as a housekeeper at a Marriott, claims that she was compelled to show up two hours before her shift actually started each day. “This was necessary for her to complete her required number of rooms for the day,” the lawsuit states. “She was not compensated for this time nor was she paid the required overtime premium for this time.” The lawsuit alleges that between 20 and 25 housekeepers found themselves in a similar situation at the hotel.

Many hotel workers in Indianapolis have told HuffPost that their workloads have increased in recent years as their wages have remained flat or even gone down. Workers and their advocates partly blame the outsourcing of previously in-house jobs for deteriorating work conditions.

A hotel company can save money by shifting some of its workforce to a company like HSS, since it would no longer be responsible for providing costly worker benefits. But workers employed by labor agencies are technically temps, sometimes going years on end without receiving health coverage or pay raises. Similar temp outsourcing has become widespread in the warehousing and logistics industries, where many workers blame the temp model for their low wages and lack of benefits.

Officials with UNITE HERE argue that the outsourcing at hotels has hidden costs for the city and state, such as the taxpayer-funded health care that many agency workers’ families end up using. “I don’t think the taxpayers of Indianapolis should be the ones to subsidize these workers because these corporations don’t want to [provide] living wages and benefits,” Becky Smith, a union organizer, told HuffPost last summer.

Salvador Perez, a 38-year-old father of two from Mexico, is also named in the hotel lawsuit. He says that he worked for HSS for the last few months of 2011, earning the $7.25 minimum wage as a dishwasher. He claims he would regularly work a 40-hour week but end up being paid only for 35. He says he’s suing with his colleagues to recover back wages and “end the exploitation that’s happening at hotels downtown.”

“We struggled to pay for diapers for our baby,” Perez says. “We had to go to food pantries and churches to feed our families. They always said, ‘It’ll come with the next check, it’ll come with the next check.’ But it didn’t.”

This article appeared in The Huffington Post on January 9, 2012. Reprinted with permission.

About the Author: David Jamieson is the Huffington Post’s workplace reporter.Before joining the D.C. bureau, Jamieson reported on transportation issues for local Washington news site TBD.com and covered criminal justice for Washington City Paper. He’s the author of a non-fiction book, Mint Condition: How Baseball Cards Became an American Obsession, and his stories have appeared in SlateThe New RepublicThe Washington Post, and Outside. A Capitol Hill resident, he’s won the Livingston Award for Young Journalists and the Hillman Foundation’s Sidney Award.

Employee Rights Short Takes: GOP Private Club Sued For Race Discrimination, Latino Discrimination On The Rise And More

Wednesday, November 3rd, 2010

It’s a political week, so here are a few short takes – admittedly- with a political twist::

GOP Social Club Sued For Racial Discrimination

The National Republican Club of Capitol Hill, an exclusive club known to be the place where the DC Republican “backroom deals” get made, is being sued for raImage: Republicance discrimination by its former human resource manager. The plaintiff, Kim Crawford,  alleges that she was repeatedly passed over for raises while “less qualified, less deserving male and white counterparts were given” increases.

Crawford also claims she was fired in July after investigating a racial complaint from the club’s acting executive chef. Race discrimination in employment and retaliation are prohibited by Title VII of the Civil Rights Act of 1964. For more about it read here.

Being A Liberal And Hating Sarah Palin May Be Genetic

I must say this story caught my eye – particularly since we have three generations of Sarah Palin bashers in my immediate family. A new study in the Journal of Politics, as reported in Time,  says that there’s a biological explanation why some people favor big government, oppose the death penalty and can’t stand Sarah Palin – and it’s called the liberal gene.

The DRD4-7R gene affecting the neurotransmitter dopamine has already been linked to a personality type driven to seek out new experiences. Researchers from the University of California, San Diego and Harvard University hypothesized that this predisposition might affect political beliefs.

The researches suspect that the D4 novelty seekers would have more exposure to a wider variety of lifestyles, a wider circle of friends and more exposure to broader  views, attitudes and beliefs. Apparently, all of this does have an effect on D4 inidviduals’ political views and the new study bears out their hypothesis  —  those born with the D4 gene are more liberal. It’s all quite interesting. I wonder if we’re going to hear about a conservative gene too?

More Latinos Concerned About Discrimination

Nearly two thirds of Latinos in the United States think that discrimination against Hispanics is a “major problem” according to a new study from the Pew Hispanic Center. There are 47 million Latinos in the US, which make up 15% of the population and constitute the nation’s largest minority group. According to the study:

Asked to state the most important factor leading to discrimination, a plurality of 36% now cite immigration status, up from a minority of 23% who said the same in 2007. Back then, a plurality of respondents-46%-identified language skills as the biggest cause of discrimination against Hispanics.

The Pew study was released days before the mid-term elections in which the Latino vote is expected to play an important role, particularly in the Florida gubernatorial race and Nevada Senate contest between Senate Majority leader Harry Reid and Tea Party Republican Sharon Angle. Anlge has been sharply criticized for ads run in recent weeks which portray Latinos as menacing interlopers. 17% of voters in Nevada are Latinos who are expected to vote in high numbers this Tuesday.

images: ktnv.images.worldnow rlv.zcache.com politicalmuse.com

This article was originally posted on Employee Rights Blog.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Employee Rights Short Takes: Wage Discrimination, Race Discrimination, Sexual Harassment and More

Tuesday, May 18th, 2010

Here are a few Short Takes worth sharing:

Sex Discrimination

Ninth Circuit Certifies Wal-Mart Class Action: In Dukes v. Wal-Mart, a decision from the Ninth Circuit Court of Appeals on April 26th, the Court certified a class in a Title VII lawsuit involving 1.5 million women seeking compensation for back pay. The Court remanded the case to the district court for a determination regarding punitive damages based upon several factors set forth in the decision. The next step is most likely a request for the Supreme Court to hear the case. For more about the case, see the California Punitive Damages Blog. For an interesting story about Betty Dukes, the Wal-Mart greeter and lead plaintiff  see the article here from the Huffington Post. This case is reported to be the largest class action in history.

Sexual Harassment

EEOC Collects $471,000 In Sex Harassment Case: The EEOC reported last week that Everdry Marketing and Management paid $471,096 in damages, plus $86,581 in post-judgment interest to 13 victims of sexual harassment. The payout stems from a four week jury trial in Rochester, New York and a Second Circuit Court of Appeals decision which affirmed the award in favor of the plaintiffs. The case involved a prolonged period of physical and verbal sexual harassment of mostly teenage telemarketers by male managers and co-workers at Everdry’s Rochester, N.Y. location including demands for sex, groping, sexual jokes and constant comments about the bodies of women employees. The story presents another example of the widespread problem of teenage sexual harassment in the U.S

Has The Sixth Circuit Had An Attitude Adjustment?

Two cases last month out of the Sixth Circuit  Court of Appeals made me think that attitudes on employment discrimination cases may be shifting.

Summary Judgment Reversed In Race Discrimination Case: In Thompson v UHHSS Richmond Heights Hospital, Inc, the plaintiff was terminated from her position as a food production supervisor when she was told that her position was eliminated in a restructuring. Thompson believed  that she was selected for termination because of her race and filed a lawsuit. The district court granted summary judgment against her. The Sixth Circuit reversed finding that evidence of Thompson’s superior qualifications in comparison to the employee who assumed most of her job duties showed that she was replaced and also showed pretext. In addition, evidence that a supervisor said to “get rid of” certain black employees whom he called “troublemakers,” which the district court gave “little weight,” corroborated accusations of discriminatory behavior according to the Court.

Sexual Harassment Verdict Affirmed On Appeal: In West v. Tyson Foods,Inc. the Court affirmed a sexual harassment award including $750,000 for past and future mental distress, and $300,000 in punitive damages. In addition to great language on damages, the Court also addressed the sufficiency of reporting sexual harassment to one supervisor as constituting “notice” and a “missing evidence” jury instruction from which the jury is entitled to draw a negative inference. The plaintiff, an assembly line worker, was subjected to a barrage of verbal and physical harassment – 10 to 15 times per shift — during her five weeks of employment at the Tyson Foods plant in Robards, Kentucky. The jury awarded more in damages that West’s lawyer requested which the Sixth Circuit both addressed and confirmed.

images: www.hickmankytourism.com

www.reclaimdemocracy.org

*This post originally appeared in Employee Rights Post on May 12, 2010. Reprinted with permission.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Racial Slur at Chevron Sparks Outrage

Tuesday, March 9th, 2010

OtaPhoto2SAN FRANCISCO, CA — Chevron Corporation’s multi-million dollar “Human Energy” advertising campaign touts how much Chevron values people.  Chevron’s website promotes the “Chevron Way” – the company’s commitment to complying with the law and placing “the highest priority on the health and safety of our workforce.”

The reality for John Suzuki, who worked at Chevron for over 35 years, was much different.  An award-winning patent liaison in Chevron’s Law Department in Richmond, CA, Suzuki was forced to take early retirement this month rather than risk his health by returning to work under a supervisor who harassed and threatened him, and called him a “stupid Jap.”

Suzuki wanted to continue working at Chevron, but the company refused his doctors’ directives that he must be moved to a different department or else he would be at high risk of having a heart attack.

“Stupid Jap” Slur

The doctors had diagnosed Suzuki as being at high risk of another heart attack after he had at least two episodes of severe chest pains following incidents in which his supervisor, Alan Klaassen harassed him by yelling at him, making false accusations and threatening him.

After one such incident in January 2008, Suzuki went to his doctor, who told him that he had to reduce his workload or else he might have a heart attack.  When Suzuki told Klaassen and a manager, Frank Turner, what his doctor said, Klaassen and Turner laughed at Suzuki.

Things came to a head in August 2009 when Klaassen again yelled at Suzuki, waved his fist in his face, threatened him and falsely blamed him for problems in the work.  Klaassen also called Suzuki a “stupid Jap.”

Use of racial slurs by supervisors on the job violates federal and state anti-discrimination laws and laws prohibiting hostile and abusive work environments.  As one federal appeals court noted in 1993, “Perhaps no single act can more quickly ‘alter the conditions of employment and create an abusive working environment’ . . . than the use of an [unambiguous] racial epithet . . . by a supervisor….”

Following the August 2009 incident, Suzuki again suffered severe chest pains.  His doctors put him on medical leave and have been treating him since then.  They told Chevron that he could return to work only when he was taken out of his hostile work environment and  moved to a different department.

Chevron categorically refused to consider moving Suzuki to a different department.  If Suzuki did not return to his department and his supervisor Klaassen, he faced termination, Chevron told him.

Suzuki got an attorney, John Ota of Alameda, CA, who pointed out to Chevron that under California law, the company must separate Suzuki from Klaassen, at the very least until Chevron did a fair and thorough investigation of Suzuki’s charges that Klaassen had insulted him with a racial epithet and otherwise created a hostile work environment.

Investigation or Cover-up?

Demanding that Suzuki return to work under Klaassen before Chevron had even investigated the matter assumed that Klaassen would be cleared, Ota noted, an indication that  Chevron had no intention of conducting a fair and objective investigation as required by law.

Chevron refused to budge.  Faced with termination and the possible resulting loss of his retirement benefits, Suzuki reluctantly chose early retirement on February 1.

Meanwhile, Japanese American and Asian American organizations, disturbed about Suzuki’s situation, began contacting Chevron to express their concerns.

Richard Konda, Executive Director of Asian Law Alliance in San Jose wrote Chevron on January 12, stating that it was “highly inappropriate and insensitive” for Chevron to demand that Suzuki return to work under Klaassen before completing its investigation.

Patty Wada, Regional Director of the Japanese American Citizens League (JACL) Northern California-Western Nevada-Pacific District, said in a  January 22 letter that she was appalled to hear that Suzuki had been subjected to racial slurs by his supervisor.

Under pressure, Chevron hired an outside Japanese American attorney, Susan Kumagai, to investigate Suzuki’s charges.  On her website, Kumagai describes herself as a specialist in “representing management” against discrimination charges.

Suzuki asked Kumagai and Chevron how many such investigations Kumagai had done in the past and in how many of those investigations, if any, she had concluded that a hostile work environment existed.  Neither Kumagai nor Chevron responded to these questions.

Not surprisingly, Kumagai conducted a quick investigation and concluded that none of Suzuki’s charges could be substantiated.  Chevron informed Suzuki of these results on February 16, but refused to provide him with a copy of Kumagai’s report.

In her hasty effort, Kumagai failed to even talk to some witnesses Suzuki said could confirm that he told them about Klaassen’s racial slur soon after it happened.  Because in this, as in many other harassment cases, there were no witnesses to the actual harassment, such corroborating witnesses are often crucial to verifying the victim’s account of what happened.

The failure to interview corroborating witnesses, hiring as the investigator an attorney who defends management for a living, and Chevron’s refusal to provide Suzuki with a copy of the investigation report – these are all “signs pointing to a cover-up,” not a fair and objective investigation, says Ota.

Letter Writing Efforts

Suzuki is continuing to ask organizations to write Chevron on his behalf.  What is important to him, he says, is “the principle of the matter – racial remarks like this cannot be tolerated.”

The points he wants organizations to make in their letters to Chevron are first, that Chevron conduct a fair and thorough investigation of his charges, an investigation by someone who has a history of doing evenhanded investigations, not by a management defense attorney.

Second, Suzuki wants Chevron to provide him with Kumagai’s investigation report, and also to provide the report when a fair and thorough investigation is completed.

Last, Suzuki asks that Chevron fire Klaassen if it finds that Klaassen did call Suzuki a “stupid Jap” and that Suzuki be allowed to return to work at Chevron in a different department.

Leaders of Nikkei for Civil Rights and Redress (NCRR) in Los Angeles wrote to Chevron on February 10.  Paul Osaki, Executive Director of the Japanese Community and Cultural Center of Northern California sent Chevron a letter on February 19.

Other organizations in Los Angeles, San Jose and San Francisco have also agreed to write to Chevron.
Those interested in contacting Chevron should write to: John S. Watson, Chief Executive Officer, Chevron Corp., 6001 Bollinger Canyon Road, San Ramon, CA 94583.

About the Author John Ota is a solo employment attorney in Alameda, CA.  He has been representing employees for over 11 years in discrimination, retaliation, harassment, wrongful termination, and overtime pay cases.  He is a member of the National Employment Lawyers Assoc. and the California Employment Lawyers Assoc.

Objections to Kodak's Proposed Race Discrimination Class-Action Settlement

Monday, October 26th, 2009

Image: Marcia McCormickIn 2004, a group of Black workers of Eastman-Kodak filed a class action against the company, alleging widespread discrimination in pay and a failure to promote on the basis of race. A second class action was filed by another group of workers in 2007. The two classes together consist of about 3000 past and current employees. This past July, the company proposed a $21.4 million dollar settlement with the class–with payouts between $1,000 and $75,000 for individual class members. Magistrate Judge Jonathan Feldman (W. D. N.Y.) held a hearing Friday on the fairness of the proposed settlement, and will hold another on November 5. At Friday’s hearing, several class members objected that the payouts were too low, that the attorneys were getting too much of the award, and that class members who left the company before 1999 would be excluded.

Some examples of the unfairness of the award include that one decades-long employee would be awarded $1000 while her daughter, employed for only 11 months, would be awarded $3000. For more details see news reports here and here.

Despite this example, it’s hard to predict without knowing more what the judge will likely rule on whether the settlement is fair overall. In addition to the money, the company promised to improve its diversity training for supervisors and hire an industrial psychologist and two labor statisticians to review its pay and promotion policies and to recommend improvements. As Jason Bent recently suggested, having an external monitor to report to the court and some sort of ongoing supervision would be even better.

This article originally appeared in Workplace Prof Blog on October 24, 2009. Reprinted with permission from the author.

About the Author: Marcia L. McCormick joined the SLU LAW faculty in 2009. Her scholarship explores the areas of employment and labor law, federal courts, and civil rights, broadly defined. She is also a co-editor and contributor to Workplace Prof Blog, which provides daily information on developments in the law of the workplace and scholarship about
it.

Zimmer on Ricci

Wednesday, July 1st, 2009

Mike Zimmer (Loyola), co-author of the leading casebook on employment discrimination and friend of the blog has provided these thoughts on the Supreme Court’s Ricci decision from yesterday.

1. The Holding. The defendants’ decision to not use test results because their use would have meant that no African-American and only two Hispanics, who made up over half of the testtakers, would be promoted was intentional disparate treatment discrimination against the white testtakers who would have been promoted if the test results had been used. That the adverse impact of the test results amounted to a prima facie case of disparate impact discrimination was not a defense to a disparate treatment case unless the employer has a strong basis in evidence to believe that it will be liable for disparate impact discrimination.

2. A Procedurally Unusual Decision. The district court, affirmed by the court of appeals, had granted summary judgment for the defendants. Not only did the Supreme Court reject the summary judgment for the defendants but found that plaintiffs were entitled to summary judgment. That means that the Court found that no material facts existed that would justify a trial. The four slip opinions run a total of 89 pages; 31 pages – 38% of the total — deal with relatively straight forward recitation of facts, most of which are quite constested.  Many more deal with application of facts to law, again with most applications hotly contested. Reading this suggests that the Supreme Court has taken upon itself the role of a trial court.

3. Acting When the Race of Those Affected is Intentional Discrimination. The key factual finding of the Court is that: “All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race – i.e., how minority candidates had performed compared to white candidates. . . . Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. . . . [T]he city made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.”

Justice Kennedy takes an enormous leap from the first conclusion – that the City acted because it knew the “statistical disparity based on race”—to his second – that it rejected the test “solely because the higher scoring candidates were white.”  In all the pages of factual recitation and application, there is simply no reference to any evidence that the sole cause of the decision was because using the test results would benefit whites. Is there no difference between intending not to disadvantage African-American and Hispanic candidates and intending to discriminate against the white candidates?

When the Civil Service Board made its decision, it only knew what the racial distribution and therefore the potential disparate impact if the test results were used. It did not know the identity of any of the testtakers. Therefore, it appears that an employer conscious knowledge of the race of those affected by its decisions suffices to make out intentional disparate treatment discrimination. This appears to be a tremendous change in the law.  For example, in Justice O’Connor’s concurrence in Price v. Waterhouse, she indicated that, “Race and gender always ‘play a role’ in an employment decision in the benign sense that these are human characteristics of which decisionmakers are aware and may comment on in a perfectly neutral and nondiscriminatory fashion.”

Justice Alito is convinced that, because an important participant in the political process was an African-American preacher, the decision of the CSB was “because of race” as a matter of law. Justice Ginsburg argues that the decision may have been made “because of politics” and not race since the white firefighters and their union were vociferous advocates for using the test. The decision may have been because of race or because of politics or because of some of each. Doesn’t this suggest a factual question that deserves a trial?

4. Should the African-American and Hispanic Testakers Claim Disparate Treatment Discrimination? Suppose that New Haven now uses the results of the tests and promotes some white firefighters. Because the City knew the race of those promoted, was that intentional discrimination against minority testakers who were not promoted? If not, why not? Is using the test results to promote people different from deciding not to use them?

The Supreme Court has been edging toward establishing a color-blind standard for equal protection, see Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S.Ct. 2738 (2007) (plurality opinion), and Ricci appears to import that into Title VII. These decisions involve challenges by whites to the use of race in a way that gives advantages to minority group members or, as here, removes an absolute impediment to the advancement of African-Americans and Hispanics. If a color-blind standard can be used by white plaintiffs, why can’t these minority firefighters rely on it?

5. Is Proof of Intent to Discriminate Reduced to Proving the Defendant Knew the Race of the Affected Individuals? Is racial consciousness, when acted upon, the same as acting with an intent to discriminate? If so, Ricci revolutionizes discrimination law. Assume an African-American applies but is rejected for a job after an interview. Does she establish defendant’s liability by getting the defendant’s interviewer to admit that she was conscious of the fact that the plaintiff is black?

6. The Strong Basis in Evidence Justification. In United States v. Board of Educ. of the Township of Piscataway, 91 F.3d 1547 (3rd Cir. 1996) (en banc), cert. dismissed, 522 U.S. 1010 (1997), the court had imported equal protection analysis into Title VII’s treatment of affirmative action. Does the Court’s adoption of the strong basis in evidence test effectively implement that importation?  Only Justice Ginsburg in dissent puts this decision into context with the Title VII affirmative action decisions to criticize this decision. Are these affirmative action decisions in jeopardy now?

7. The “Q” Word Strikes Again. Is the fear that employers would have an incentive to use racial quotas what drives this decision?

8. Why Isn’t There Strong Support for Disparate Impact Liability? The Court concluded that, “The racial adverse impact here was signicant, and . . the City was faced with a prima facie case of disparate-impact liability.” The Court then minimizes what that means: “[A] prima facie case of disparate-impact liability – essentially a threshold showing of a significant statistical disparity and nothing more – is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results.”  Does this undermine the significance that this prima facie showing shifts both  the burden of proof and of persuasion to the defendant?  Is the Court attempting to reinstate Wards Cove?

9. Was the Test Job-Related and Consistent with Business Necessity as a Matter of Law?  The written examination part of the test asked questions based on the testtakers ability to memorize extensive documents. Under the approach of the EEOC Uniform Test Guidelines as well as professional test standards, what IOS did was to construct a test that was supposedly content validated, i.e., that it was a sample of the job. While IOS supposedly did a job analysis, neither taking written or oral exams were involved in the jobs of lieutenant or captain in the fire department.  Nor is there any indication that memorization and recall of documents played any role at all in the jobs for which the test was to be used. The use of “assessment centers” where testtakers play the role that replicates the actual job can be content validated as job samples. Isn’t there at least a question of fact whether the test that was used was not job-related and not consistent with business necessity?

10. Was Section 703(h) Test Provision Superseded by the 1991 Civil Rights Act? The Court does not address the jurisprudence associated with the test exception in original §703(h). Has the Court decided sub silentio that this provision and its underlying jurisprudence has been repealed when Congress codified disparate impact law in new § 703(k)?

11. Were There No Less Discriminatory Alternatives as a Matter of Law? The record showed alternatives that were less discriminatory – simply altering the ratio of written to oral scores appeared to have reduced discriminatory impact in Bridgeport, using “assessment centers” or altering the “rule of three” to a banding approach – all were alternatives that could have been adopted instead of the test that was used.  The Court appears to assume that, because it was too late to adopt any of these alternatives to resuscitate this test, they could not count as alternatives. But, in fact, the City could consider these precisely because it had decided not to use the results of this test.

12. Should the Minority Testtakers Claim Disparate Impact Discrimination? Assuming the City would now use the test results, should the African-American and Hispanic testtakers bring a disparate impact claim? With the Supreme Court deciding as a matter of law that the test was job-related and consistent with business necessity and that there were no less discriminatory alternatives available, is there anything left to contest?

13. Empathy for Whom? With the statement by President Obama that he seeks to appoint Justices who have empathy, what does Ricci suggest about empathy? Justice Kennedy concluded that, “Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. . . . [O]nce [the test process] has been established and employers have made clear their selection criteris, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race.” Nothing in any of the opinions suggest that the employer had committed itself in advance to use the test results no matter what they might be. Is the Court suggesting that the testtakers had some sort of contractual based right to have the test results used? The last part – about expectations concerning race – would appear to undermine such a contractual claim. However, what about the expectations that employers would not use employment practices that cause a disparate impact? Justice Ginsburg puts the context of this case into the larger frame of the longstanding discrimination minority firefighters have faced and the use of the disparate impact theory to attack their exclusion. Doesn’t this decision defeat their expectations in order to satisfy the expectations of the white testtakers?

14. Is This 1989 Redux? It has been twenty years, but has a new conservative majority in the Roberts Court been able to undermine Title VII just as the Rehnquist Court majority did then? Will Justice Ginsburg’s prediction that this decision will not last prove true?  Will this new majority take the step argued by Justice Scalia to embed Ricci in the Constitution by striking down disparate impact analysis as unconstitutional?

About the Author: Mike Zimmer is a law professor at Loyola University Chicago.  One of his main areas of concentration, which includes co-authoring an Aspen casebook, is employment discrimination. He graduated from Marquette Law School, clerked for Judge Fairchild on the 7th Circuit, worked at Foley & Lardner and have taught at a good number of law schools. Zimmer joined the Loyola faculty after 30 years at Seton Hall Law School.

This article originally appeared in Workplace Prof Blog on June 30, 2009. Re-printed with permission by the author.

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