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Employer Can Depose All 94 Claimants In EEOC Lawsuit

Posted by Molly DiBiancaOn November 24, 2012In: Discrimination, EEOC Suits & Settlements, Race (Title VII)

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Litigating against the the EEOC is difficult for several reasons. For one, unlike a lawsuit brought by an individual plaintiff, a suit brought by the EEOC has the resources of the entire federal government behind it. Perhaps because of the agency's bureaucratic structure, negotiating with EEOC counsel can be difficult during litigation, at times resulting in a total breakdown of communication. A recent decision by a federal court in Illinois illustrates what happens when the lawyers in an employment-discrimination lawsuit take the driver's seat to the exclusion of the individuals at the heart of the case.

EEOC v. DHL Express (USA), Inc., was brought by the EEOC on behalf of 94 claimants, alleging that DHL discriminated against its African-American driver/dockworkers based on their race by giving them less desirable, more difficult, and more dangerous route and dock assignments than their Caucasian counterparts and by assigning African-American drivers to routes in predominately African-American areas.

DHL brought a motion to compel the EEOC to produce all of the claimants for deposition after the EEOC provided interrogatory responses that included an unsworn "vignette" for each claimant with the claimants' general allegations of discrimination. DHL argued that individual depositions were required because the vignettes were vague, filled with generalities, and, in several instances, inaccurate. DHL also argued that, because there is no standard as to what constitutes a "more dangerous assignment" and no objective criteria for what constitutes "less desirable," each claimant's individual testimony was necessary to establish its defense.

The court was not impressed by the "vignettes," finding that they failed to give any meaningful detail or specifics about the alleged discriminatory treatment. Instead, the court concluded that the additional 60 depositions (DHL had deposed 34 of the 94 claimants already), were necessary not to evaluate both potential liability and damages.

The lesson to be learned from this decision, in my opinion, relates mostly to litigation strategy. By submitting these "vignettes" in response to the defendant-employer's interrogatories, the EEOC seems to have forgotten about the individual employees whose claims were the basis for the lawsuit. Had the EEOC actually provided the sworn responses of the employees instead, the need for the employer to expend its resources to take an additional 60 depositions would not have been necessary. Or, perhaps, the EEOC should have formulated a clearer understanding of its allegations before filing its Complaint. Ah, a lawyer can dream, can't she?

EEOC v. DHL Express (USA), Inc., No. 10 C 6139 (N.D. Ill. Oct. 31, 2012).

Harassment Prevention: It's All Fun and Games . . . Until It's Not

Posted by Lauren Moak RussellOn November 4, 2012In: Discrimination & Harassment, EEOC Suits & Settlements, Harassment, Harassment, Other (Title VII), Race (Title VII)

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Workplace anti-harassment training can be summarized with the title of this post. The fact that an employee laughs at an inappropriate joke is not a legal defense to a later claim at harassment. Nor is an employee's failure to object to inappropriate workplace conduct. One employer recently learned this lesson the hard way.

In the case of EEOC v. Holmes & Holmes Industrial, Inc., the EEOC filed suit against a construction company on behalf of several Black employees, alleging hostile work environment claims. To succeed in a case alleging discrimination based on a hostile work environment, a plaintiff must prove that he or she was subject to (1) intentional discrimination, that was (2) severe or pervasive (3) and subjectively offensive to the plaintiff, and (4) that would be objectively offensive to a reasonable person in the plaintiff's position.

In support of its claims against Holmes & Holmes, EEOC asserts that the employee-claimants faced frequent, racially-charged comments from their managers and co-workers. EEOC also contended that supervisors frequently told racial jokes. In response, the employer argued that the employees engaged in similar conduct, frequently using racial slurs and terms.

Following the conclusion of discovery, the EEOC moved for summary judgment--and won! The Court granted partial summary judgment, concluding that the EEOC had proved elements one, two, and four of its claims. The Court's decision noted that the EEOC had brought the "rare case where there is no dispute as to the pervasiveness of the conduct in question. No reasonable jury could find that a reasonable African-American would not be offended by this conduct."

The Court rejected the employer's argument that the employees' participation in the misconduct indicated that it wasn't offensive. Instead, the Court left for the jury the question of whether the employees were willing participants in the harassment.
The employer now finds itself in the unenviable position of going to trial in a case with very bad facts.

The lesson to be learned may be easier said than done but absolutely essential in preventing litigation and limiting liability--inappropriate or off-color jokes do not belong in the workplace, regardless of who you seems to find them funny. Really, there's absolutely nothing funny about being suied for unlawful employment discrimination.

3d Cir.: Disparate Impact of Newark, NJ’s Residency Requirement

Posted by Molly DiBiancaOn October 3, 2011In: Cases of Note, Discrimination, Race (Title VII)

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In Meditz v. City of Newark (PDF), the Third Circuit concluded that the City of Newark, New Jersey’s residency requirement may have unlawful disparate impact on non-Hispanic white applicants.  The case was brought Gregory Meditz, an attorney acting pro se.  Meditz alleged that the City’s residency requirement disparately impacted white, non-Hispanics and, as a result, white, non-Hispanics were under-represented in the City’s workforce.

image

Meditz, a white male, applied for a job as an Analyst with the City of Newark, New Jersey.  He was rejected for the job because he lived in Rutherford, New Jersey and a City ordinance required that non-uniformed employees live within City limits.  Meditz filed suit, alleging that the City’s residency requirement negatively impacted the hiring of white, non-Hispanics.

In support of his suit, Meditz provided statistical information that he’d gathered from publicly available sources.  Newark argued that the disparity reflected by the statistics were not sufficiently substantial.  The federal district court agreed with the City and found that the statistical evidence Meditz presented did not “constitute sufficient evidence of a significantly discriminatory hiring pattern.”  The Third Circuit Court of Appeals did not agree and reversed.

The Third Circuit found, instead, that the statistics showed that the percentage of white, non-Hispanics in Newark’s non-uniformed workforce was lower than the percentage that would be expected based on Newark’s general population.  The case was remanded for the District Court to analyze the evidence in accordance with the correct standard, as described in the Third Circuit’s decision.

Meditz v. City of Newark, No. 10-2442 (3d Cir. Sept. 28, 2011) (PDF).

 

For more on disparate impact, see also:

9th Cir. on ADA and Drug Addiction

Overview of the Risks of Employment Testing

The Link Between Race and Obesity—Disparate Impact Waiting to Happen?

EEOC’s Proposed Regs for Age Discrimination Disparate-Impact Claims

Employee Claimed He Was Fired for Complaining About Racist Rap Music

Posted by Molly DiBiancaOn June 26, 2008In: EEOC Suits & Settlements, Harassment, Other (Title VII), Race (Title VII)

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Music may be an art form to some.  But some music may be a form of harassment.  The EEOC has reach an agreement with Novellus Systems wherein the San-Jose based employer will pay $168,000 to a former employee for race-based harassment.  The claim alleges that the employee was terminated after he complained about racially offensive music played by a co-worker.

Gangsta' Rap Coloring Book

Michael Cooke worked at Novellus Systems for more than ten years. Cooke, an assembly technician, claimed that he was terminated after he complained about racially offensive music played at work by a co-worker.  The suit alleged that a 27-year-old co-worker would play rap music and rap along, using lyrics that included derogatory racial slurs, including the "N-word."

Cooke complained to the co-worker, a Vietnamese-American, and to his supervisors about the language in the songs.  But the co-worker continued to sing along using racial slurs within hearing distance of Cooke.  After a year and a half of the co-worker singing and Cooke complaining, the suit alleges, Cooke was dismissed in retaliation for his complaints.

A lesson for employers:  As part of the settlement agreement, the company has agreed to modify its anti-harassment policy to exclude playing racially derogatory music in the workplace. 

Does your anti-harassment policy include this type of prohibition?  Are your employees permitted to play music at their work stations?  If the answer is "yes," maybe you should consider a policy review to make sure you're covered.

P.S.  The Gangsta Rap Coloring Book pictured above is, indeed, a real coloring book, available for sale at Amazon.com for $8.95.

Perdue Farms Settles Failure-to-Hire Lawsuit and Laments Failure to Document

Posted by Molly DiBiancaOn June 17, 2008In: Discrimination & Harassment, Hiring, Interviewing, Purely Legal, Race (Title VII)

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Good documentation practices during the hiring process can help employers avoid a failure-to-hire claim.  And that's a good thing, considering that failure-to-hire claims are costly. Just ask Perdue.  The poultry company has agreed to a pay out of more than $800k to settle a claim of disparate impact arising from what the DOL concluded to be systematic discrimination against non-Hispanic job applicants. 

 perduelogosmall172x128

Disparate Impact Claim

A Labor Department news release states an evaluation in 2005 and 2006 by the Office of Federal Contract Compliance Programs (OFCCP) found the Salisbury-based company failed to comply with federal employment laws at its poultry processing plants in Rockingham, N.C., Dillon, S.C., and Monterey, Tenn. (The OFCCP has jurisdiction because Perdue supplies poultry under a federal contract to the U.S. Department of Agriculture.)

The settlement agreement will require Perdue to pay $800,000 in back wages and interest to 750 women and minorities who were not hired during the relevant time period.  The company also will make employment offers to some of those who were not hired but who are still interested in employment with Perdue.  In those cases, the employees will receive retroactive company service dates for purposes of benefits and promotion rights. 

 

Documentation Regrets

Perdue officials denied the allegations on the basis that many applicants were unqualified for employment or withdrew from consideration for employment.  They stated that the company agreed to a settlement only to avoid protracted litigation, according to the company. The VP of HR said in a company statement:


Perdue is committed to treating all job applicants fairly. We regret we did not more carefully document our hiring process for production associates, which led to these concerns by the OFCCP and, ultimately, to this settlement.


Perdue has implemented new procedures to ensure it retains all relevant documentation of its selection processes and is also conducting training of its human resources staff to assure appropriate implementation of Perdue's hiring and employment practices, according to the company statement.

Interviewing Best Practices

Interviewing is one of the most neglected areas in employment law.  When I teach seminars on lawful interviewing, I will inevitably see faces filled with shock and despair as they realize just how many of the best practices have not been implemented in their organization. 

Documentation is key in hiring.  If you keep notes and records only on the people you hired, you will have nothing to refer to in a failure-to-hire claim.  And let's be honest, the ones you didn't hire are likely the ones who were the least memorable.  Can you remember candidates you interviewed and rejected in 2005 and 2006? 

Without an established and consistent documentation and record-retention policy for the hiring policy, a failure-to-hire claim can be nearly impossible to defend.  Just ask Perdue.

 

Source:  Delaware News Journal, Gwenn Garland

Start Your Engines: NASCAR Faces Harassment Suit

Posted by Molly DiBiancaOn June 11, 2008In: Cases of Note, Gender (Title VII), Harassment, Sexual, Race (Title VII), Sexual Orientation

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NASCAR has been sued for race discrimination, gender discrimination, and sexual harassment.  The plaintiff, a black female former official, seeks $225 million in damages.

NASCAR Discrimination Suit

The plaintiff, Mauricia Grant, worked as a technical inspector in NASCAR's second-tier Nationwide Series until she was fired in October 2007. She'd been with the organization since 2005, when she alleges the harassment and discrimination began. 

Her complaint, filed in federal court in New York, lists 23 specific instances of alleged sexual harassment and 34 specific instances of alleged gender and racial discrimination.

Despite an increasingly female fan base, NASCAR has long been a "man's sport" with women's involvement traditionally limited. 

Grant claims that she was harassed based on her race and her gender, as well as subject to a sexually hostile work environment.  In support of her racial discrimination claim, she alleges that she was referred to as "Nappy Headed Mo" and "Queen Sheba" and was told that she worked on "colored people time. 

One official, Grant alleges, routinely made references to the KKK.  And, while riding with coworkers at Talladega Speedway, she was told to duck as they passed by race fans because, one said, "I don't want to start a riot when these fans see a black woman in my car."

As for the sexual harassment, she says that she was accused of being gay when she ignored advances of co-workers.  She also claims that those same co-workers exposed themselves to her and made graphic and lewd jokes.

Grant also alleges that she routinely complained about the conduct to multiple supervisors, who responded that she should just "deal with it," and dismissed the conduct as attributable to "former military guys" with a rough sense of humor.

Source:   ESPN: Ex-NASCAR worker alleges racial discrimination in lawsuit

Supervisor Costs Tavern on the Green $2.2m in EEOC Suit

Posted by Molly DiBiancaOn June 4, 2008In: Cases of Note, EEOC Suits & Settlements, Harassment, Other (Title VII), Harassment, Sexual, Race (Title VII)

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The Equal Employment Opportunity Commission (EEOC) can add another major victory to the scorebooks.   Earlier this week, the Commission settled a discrimination lawsuit for $2.2 million.  The actions at issue are said to trace back to a supervisor who is no longer with the restaurant.  This should be a wake-up call for employers who don't provide employment-law training to supervisors, helping to prevent and eliminate discrimination and harassment in the workplace. 

tavern on the green

Tavern on the Green

The hottest headline for EEOC settlements right now is the agreement reached with the legendary N.Y.C. landmark restaurant, Tavern on the Green. Earlier this week, the New York Times reported that the restaurant, located in Central Park, had agreed to pay $2.2 million to settle a sexual-harassment claim filed by the EEOC last September.

Tavern on the Green is a destination for many Big Apple visitors with discriminating tastes, as well as a regular dinner spot for the who's who of New York's social scene.  The restaurant opened in 1934 and, in the 50+ years since, has become the "highest-grossing independently owned restaurant in the United States with annual revenues in excess of $34 million and over half a million visitors a year."

The Allegations Were Many

The suit alleged a whole host of claims including discrimination, harassment, and retaliation.  The alleged harassment was said to include groping female staff members, the regular use of graphic sexual comments, and demands for sexual favors.

The discrimination allegations involved Hispanic employees, who were allegedly ridiculed and name-calling.  Black employees were alleged to have received similarly hostile treatment. 

As could be expected, the iconic restaurant denied any wrongdoing as part of the settlement. Representatives also claimed that the target of the suit, the managers accused of engaging in severe and pervasive harassment, separated from the restaurant several years ago.

The conduct is said to have stemmed primarily from one long-time manager who has since left the restaurant's employment. 

Take Away

What can employers learn from this case?

Well, for one, even the giant can fall.  The Tavern is legendary--a Goliath in a city of Goliaths.  After nearly 75 very successful years in operation, even the Tavern was not immune from the EEOC's watchful eyes. 

But there's another lesson to be learned here.  The idea that just one supervisor, if left unchecked, can cost your business a lot--a lot of money, a lot of time, and a lot of bad publicity.  Had this supervisor been trained in employment laws, would he have chosen not to engage in such conduct?  Likely not.  But perhaps others would have recognized the serious repercussions of his conduct and put a stop to it before it turned into major liability.

This case is a very good advertisement for harassment and discrimination training for managers.  By setting ground rules for managers to enforce and to follow, employers can take action in preventing this type of detrimental lawsuit.

N.Y. Times: Tavern on the Green to Pay $2.2 Million to Settle Harassment Claim

DOJ Long-time Employee Sues For Race Discrimination

Posted by Molly DiBiancaOn May 30, 2008In: Harassment, Sexual, Newsworthy, Public Sector, Race (Title VII)

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The Department of Justice has been sued by an employee who alleges racial discrimination and sexual and race-based harassment. 

DOJ

A 13-year veteran paralegal in the Civil Rights Division of the Department of Justice (DOJ) has filed suit claiming she was discriminated against and harassed by managers who repeatedly passed her over for advancement because she is African-American. Joi Hyatte alleges that the DOJ "actively" sought only white and Hispanic candidates for higher-paying analyst positions.

The complaint also says that the section chiefs failed to rein in or discipline three white male lawyers who "behaved in a racially and sexually offensive manner" toward two female analysts -- one white, the other black. 

The attorneys mocked the Caucasian analyst for displaying pictures of prominent African-American civil rights activists and leaders on the walls of her office. They also commented that she had a 'tight ass' and referred to both women as 'lesbians' and 'carpet munchers.'

David Vladeck, a professor at Georgetown University's law school, is representing Hyatte.  He says at least six other African-Americans in the voting section have complained of similar treatment, filing internal complaints with the DOJ's EEO Office.

Hyatte does not seek the normal damages.  She wants to be promoted to analyst and seeks back pay for the period that she had been performing analyst work without receiving the title or the pay that goes with it.  Law.com has complete coverage of this developing story, Civil Rights Division Employee Sues DOJ, Alleges Discrimination.

It's not very common, but it does occasionally happen that a government agency is charged with committing the very same offenses that it is charged with eradicating.  See my earlier post, Some Might Consider It Ironic:  EEOC Charged With Violating the Overtime Exemption of the Fair Labor Standards Act.

U.S.S.C. Is Hardly Anti-Employee: Supreme Court Expands Retaliation Claims

Posted by Barry M. WilloughbyOn May 28, 2008In: Public Sector, Race (Title VII), Retaliation, U.S. Supreme Court Decisions

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The United States Supreme Court is anything but anti-employee.  The Supreme Court's decisions in Cracker Barrel and Gomez-Perez, filed yesterday, continue to broaden the limits of Section 1981 in favor of employees.

Recently, employee-advocate groups have made great sport out of attacking the Supreme Court’s employment-discrimination decisions--using them to raise the hue and cry for legislative reform. This week's rulings in CBOCS West, Inc v. Humphries (the “Cracker Barrel” case), and Gomez-Perez v. Potter show that employee advocates and plaintiffs’ lawyers have little to complain about.

The Background of Section 1981U.S.S.C. Building

The Court's 7-to-2 ruling in the Cracker Barrel case addressed a novel question of law: Whether there can be a claim of unlawful retaliation based on Section 1981. Section 1983, originally known as the Ku Klux Klan Act, was passed in 1871 during Reconstruction following the civil war.  The law was intended to provide a federal remedy for private conspiracies such as those being committed by the KKK, which the Southern state courts had been unsuccessful in prosecuting. In short, the law prohibits discrimination based on race in all aspects of contractual relationships, including written and unwritten employment contracts.

But Section 1981 contains no anti-retaliation language at all. What’s more, when Congress amended the law in 1991, it did not add an anti-retaliation provision.  By that time, many other anti-discrimination statutes had been enacted to explicitly included anti-relation provisions. Nevertheless, in yesterday's Supreme Court opinion by Justice Breyer, the Court concluded that retaliation claims may brought under the statute and are “well embedded in the law.”

The Significance of the Cracker Barrel Decision

The ruling is significant in at least two ways. First, unlike the perhaps more familiar racial discrimination claim under Title VII, damage awards under Section 1981 do not include monetary caps. Employers are therefore exposed to substantially higher damage claims.

Second, Section 1981 claims do not require an administrative filing with the EEOC. The statute of limitations for such claims is much longer for these claims as compared to Title VII.  The statute of limitations in a Section 1981 claim is borrowed from state law.  The limitations period from the analogous intentional tort claim is applied unless the limitations periods vary for different intentional torts.  In that case, the state's general personal injury statute of limitations should apply.

For Delaware employers, that means that, whereas a Title VII employee-plaintiff has 300 days to file a Charge of Discrimination, a Section 1981 plaintiff has more than twice as long, four years, to file a complaint in federal court. Further, since no administrative filing requirement exists under Section 1981, the employer may be unaware of a potential claim for a lengthy period of time.

The Significance of the Gomez Ruling

The Gomez decision is less significant in that it only applies to federal employees. In Gomez, the U.S. Supreme Court, in a 6 to 3 ruling, found that a cause of action for retaliation existed for claims brought pursuant to the Age Discrimination in Employment Act (“ADEA”). The ADEA has an explicit anti-retaliation provision applicable to private sector employees but no anti-retaliation provision applicable to federal workers. The High Court, nevertheless, concluded that Congress “intended” that retaliation be considered another form of “intentional discrimination” under the law.

Cracker Barrel and Gomez continue the Supreme Court trend that began with the Burlington and Faragher decisions, issued in 1998.  Since those rulings, the Court has taken an expansive view of anti-retaliation claims.  It will be interesting to see whether pro-employee groups and Plaintiffs' lawyers will be satisfied by these decisions in light of the decidedly expansive view of employee-retaliation rights that the Court has adopted.

 

Additional Resources:

The Legal Information Institute (LII) at Cornell has an excellent summary of the Cracker Barrel decision, as well as links to the actual decision and the numerous briefs.  The Gomez decision is also posted at the LII website.

HR Hero is an excellent resource for more information on the broader topics that were addressed in these cases, including Section 1981, Employment Retaliation, and Age Discrimination in Employment (ADEA).

 

[Update May 29, 2008:  SCOTUS Blog also has an in-depth analysis of both cases from the plaintiff-employee perspective.]

Termination Because of Interracial Marriage Found to Constitute Race Discrimination

Posted by Molly DiBiancaOn May 13, 2008In: Delaware Specific, Purely Legal, Race (Title VII)

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Racial discrimination comes in many forms and, following a recent opinion from the Second Circuit, discrimination due to an employee's interracial relationship is one of them.

 

Employment discrimination laws prohibit employers from making decisions based on race, gender, religion, disability, and certain other characteristics.  Since the passage of the Civil Rights Act of 1964, these laws have addressed discrimination based on the characteristic of the employee.  But lately there has been an increase in cases of "associational discrimination." 

Associational Discrimination 101

In this new genre of discrimination law, the focus is not on the characteristic of the employee, but on a person or persons with whom the employee associates.  In other words, let's say that your parents were Jewish and all of their friends were Jewish but you had converted to were Christianity in college. 

And let's say that your employer fired you--not because he thought you were Jewish, but because of your association with your Jewish friends and family.  That is an example of associational discrimination.  The discrimination stemmed not from your religion but from the religion of the people with whom you associate. 

A recent case from the Second Circuit--the first of its kind--held that associational violation occurs when an employee is fired for his interracial marriage.

Holcomb v. Iona College (2nd Cir.)

Facts of the Case

The case is Holcomb v. Iona College, decided on April 1.  Holcomb was a basketball coach at Iona College in New York. He claimed that a college official, Brennan, tried to prevent Holcom's wife, who was Black, from attending public alumni functions , and that Brennan had made racially derogatory comments about some of the Black players. 

Another college official, Petriccone, also made offensive racial comments about Black players in the basketball program.  As the Second Circuit put it, "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?'”

In addition, when Petriccione found out that Holcomb was marrying an African-American woman, he allegedly made a comment so offensive comments that it won't be posted here. 

Iona College eventually fired Holcomb, explaining that his termination had to do with his poor job performance. After the district court granted summary judgment to the college,the Second Circuit remanded on appeal.

The Court's Decision

The court's discussion set forth the associational-discrimination analysis. Here is the play-by-play:

  1. Protected Class. The Court held that Holcomb was a member of a "protected class" under Title VII.  Although Holcomb was not Black, his wife was, and there was evidence that his interracial marriage was the reason for his termination. 
  2. Interracial Association.  The Court reasoned that, "where an employee is subjected to an 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."
  3.  Pretext Evidence.  As noted above, there was plenty of evidence from which the Court could conclude that the reasons given for Holcomb's termination were a mere pretext for race-based discrimination.  Another piece of evidence to support Holcomb's claim was that O'Driscoll, the white staff member who replaced Holcomb, was the only white member of the staff without a Black girlfriend or wife. 

Recap

This decision from the Second Circuit does not necessarily address a novel issue of law.  Associational discrimination had previously been addressed by district courts within the Circuit.  But the clarity of the Court's opinion in Holcomb very clearly sets the groundwork for similar future claims.

Delaware-based Conectiv Settles Race-Discrimination Claim with EEOC in Philadelphia for $1.65m

Posted by Molly DiBiancaOn May 7, 2008In: Disabilities (ADA), EEOC Suits & Settlements, Race (Title VII)

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Racial discrimination is still a grim reality. Just ask Conective Energy, which has settled a suit filed by the EEOC for $1.65 million. Even in our super-modernized, uber-fast, and always-accessible culture, race-based discrimination has managed to stand its ground despite the changed landscape around it. The Conectiv case is a discouraging testament to this often invisible fact.

The Equal Employment Opportunity Commission (EEOC) filed the suit on behalf of four African-American workers against Conectiv and three subcontractors. The claimants worked at the now-defunct Bethlehem Steel site in Bethlehem, Pennsylvania. Connective was the contractor building a gas-fired power plant at the site.

The claims of race discrimination are disturbing. The workers alleged that they were subjected to racially derogatory comments such as "black men can't read or write" and "I think everyone should own one." But the harassment didn't stop with workplace commentary. There was graffiti on the site that included "I love the Ku Klux Klan" and "if u not white u not right." And, in the ultimate display of racial animus, a noose, made of heavy rope, was hung from a beam above on the of the men's work area. The noose was not removed for at least 10 days, according to the Complaint.

Conectiv will carry the heaviest payment in the settlement. It is charged with a $750,000 tab, while the other three defendant-subcontractors, will pay $450,000, $250,000, and $200,000 each. As is standard (and non-negotiable) in settling with the EEOC, the defendants must Revise and edit their anti-discrimination policies, provide anti-discrimination training, and post a notice at all job sites setting forth the basis for the suit and subsequent settlement. The consent decree also provides that it does not constitute an admission of any wrongdoing by any defendant.

Racial harassment cases at the EEOC have surged since the early 1990s from 3,075 in Fiscal Year 1991 to nearly 7,000 in FY 2007. In addition to investigating and voluntarily resolving tens of thousands of race discrimination cases out of court, the EEOC has sued more than three dozen employers this decade in racial harassment cases involving nooses.

Terrence Cook served as the Supervising Trial Attorney and Mary M. Tiernan as Program Analyst on behalf of the EEOC.

Additional Resources:

EEOC's Press Release, May 5, 2008

Philly.com, Forbes, and CNBC are each running the AP story.

As usual, Mark Toth, at the Manpower Employment Blog is on top of the latest headlines.

The Link Between Race & Obesity: Disparate Impact Waiting to Happen?

Posted by Molly DiBiancaOn April 29, 2008In: Off-Duty Conduct, Race (Title VII)

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Employers face another obesity obstacle.


As everyone knows, Americans have been gaining more and more weight over the past forty years or so, as confirmed by the National Institute of Health’s website. Reading the recent post in this blog about obesity policies made me wonder whether the Americans with Disabilities Act is the only law that such a policy might conflict with. What about Title VII of the Civil Rights Act of 1964?

One of the lesser-known ways of getting into trouble under Title VII is through unintentional discrimination, also known as “disparate impact.” That’s where an employer adopts what appears to be a race-neutral, gender-neutral rule for making selection decisions such as hiring, promoting or terminating employees.

If the policy adversely affects one race or gender more than another, the employer will have to show that the rule is “job related for the position in question and consistent with business necessity.” If the employer can make this showing, the plaintiff is must point to an available alternative practice that does not have a discriminatory effect.

So my question is, would an anti-obesity policy have an adverse impact on any protected group? Here’s what the NIH website says:

Q: What is the prevalence of overweight or obesity in minorities?
A: Among women, the age-adjusted prevalence of overweight or obesity (BMI > 25) in racial and ethnic minorities is higher among non-Hispanic Black and Mexican-American women than among non-Hispanic White women. Among men, there is little difference in prevalence among these three groups [6]. Sufficient data for other racial and ethnic minorities has not yet been collected.

    Non-Hispanic Black Women: 79.6 percent Mexican-American Women: 73 percent Non-Hispanic White Women: 57.6 percent

    Non-Hispanic Black Men: 67 percent
    Mexican-American Men: 74.6 percent
    Non-Hispanic White Men: 71 percent

(Statistics are for populations age 20 and older.)

Studies using this definition of overweight and obesity provide ethnicity-specific data only for these three racial and ethnic groups. Studies using different BMI cutoff points derived from NHANES II data to define overweight and obesity have reported a high prevalence of overweight and obesity among Hispanics and American Indians. The prevalence of overweight and obesity in Asian Americans is lower than in the population as a whole.

A study published in the Epidemiologic Review similarly reports that “[m]inority and low-socioeconomic-status groups are disproportionately affected at all ages” by obesity. The prevalence of obesity also increases with age, according to the same study.


It’s food for thought, and perhaps more fodder for creative plaintiffs’ attorneys or the EEOC.

Race Discrimination Class Action Denied by Third Circuit Court of Appeals

Posted by Maribeth L. MinellaOn April 20, 2008In: Cases of Note, Disabilities (ADA), Purely Legal, Race (Title VII)

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The Third Circuit, which governs Delaware, New Jersey, and Pennsylvania, applied a strict interpretation of Rule 23(f) and affirmed dismissal of a class action against Johnson & Johnson. The case, Gutierrez v. Johnson & Johnson, was filed by African-American and Hispanic former J&J employees alleging race discrimination--8,600 employees in all.

The federal District Court in New Jersey declined to certify the group as a class. Notably, the court found that the group had failed to identify any J&J policy that was discriminatory. The court also cited the diversity and size of the group as factors weighing against class certification.

Now, hang in there, this is where it starts to get complicated.

The potential class could have filed an appeal with the Third Circuit after the District Court issued its decision denying certification. But, instead, they wanted to file a motion for reconsideration. J&J agreed to an extension of time for the employee to file their motion. The court granted the requested extension but eventually denied the motion for reconsideration, upholding its denial of class status.

The employee-petitioners sought permission tofile an interlocutory appeal with the Third Circuit. The petition was filed within ten days of the District Court’s denial of their motion for reconsideration but 125 days after the original decision denying class certification.

A petition to appeal must be filed within 10 days. When a motion for reconsideration is timely filed, though, the 10 day-clock stops running until the motion is decided. Here, the employee-petitioners filed their motion within the deadline set by the District Court's scheduling order. That was not enough for the Third Circuit. Instead, the court found that the 10-day requirement was mandatory--within 10 days of the decision denying class certification, the party has 10, and only 10, days within which to file an appeal.

The fact that the motion for reconsideration was timely for purposes of the District Court’s scheduling order did not matter. According to the Third Circuit, much to Johnson & Johnson's relief, Rule 23(f) of the Federal Rules of Civil Procedure is strict and mandatory.

Reservist sues Delaware State Police for Military Service Discrimination

Posted by Scott A. HoltOn March 27, 2008In: Race (Title VII), Uniformed Services (USERRA)

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USERRA Reemployment Rights

The latest headlines of the local newspaper, the News Journal underscore what is becoming the latest trend in employment lawsuits: military service discrimination.

On Wednesday, March 26, an Army lieutenant colonel serving in in Baghdad filed a federal lawsuit alleging he was fired from the Delaware State Police in violation of state and federal laws that protect military reservists from discrimination and retaliation because of their military service.

45-year-old Lt. Col. Keith W. Janowski claims that he encountered harassment, discrimination and retaliation because of his duties and obligations "as a citizen-soldier in the U.S. Army Reserve" during his 16 years on the state police force. He also alleges that after his return from active duty in 2003, he asked for retraining in civilian searches but was denied. He was fired in 2005 for conducting a improper search and exercising poor judgment, allegedly because he missed a pack of cigarettes during a search of a person.

This lawsuit supports the national statistics that more and more military personnel are excercising their rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA). As those employees return from active duty, employers face extensive and often confusing obligations imposed under USERRA. The law was enacted in 1994 to encourage civilian military service by attempting to eliminate the disadvantages employees face when called into service. The law governs employer's responsibilities to employees during periods of military leave and upon return to employment.

Unlike many employment laws, USERRA applies to all employers, public and private, regardless of size. It requires you to grant unpaid leaves of absence for employees called into military service. Employees may elect to use accrued vacation pay, annual leave, or other accrued paid leave during military leave, but you may not require them to use it during that time. Upon returning from military service, USERRA grants eligible employees the right to reemployment.


Eligibility for Reemployment

Eligibility for reemployment under USERRA requires employees to meet the following criteria:


1. Notice. Employees must provide employers with advance notice of their military service obligation. The notice may be verbal or written and may be provided by a military officer. Many employers request that employees provide copies of induction documents, training notices, or other military orders. The advance notice requirement is waived if military necessity makes advance notice impossible or unreasonable.

2. Exclusions. Reemployment rights are available for absences of up to five years of cumulative military service. Many of the most common categories of military service for employees don't count toward that five-year limitation period. For example, military service during a time of war or national emergency is exempt from the five-year period. President Bush declared a state of national emergency following the September 11, 2001, attacks and authorized mobilization of military troops.

3. More Exclusions. Military service in support of Operation Iraqi Freedom and Operation Enduring Freedom isn't counted toward USERRA's limitation period. Another exception you must be familiar with is the annual and weekend training required for National Guard members and reservists.

4. Disqualifying Discharges. Reemployment rights under USERRA don't extend to an individual with a disqualifying discharge from military service. A disqualifying service discharge means (1) a separation from service with a dishonorable or bad-conduct discharge, (2) a separation from service under "other than honorable" conditions, (3) dismissal of a commissioned officer by court martial or presidential order, and (4) a "dropped from the rolls" separation caused by an absence without authority or civil imprisonment.

5. Reapplication Period. To maintain reemployment rights, an employee must report to work or apply for reemployment within a specific period of time determined by the length of military service. A written application for reemployment is unnecessary; an employee is required to inform his employer that the period of military service has been fulfilled. If the military leave is less than 31 days, the employee must return to work eight hours after returning home from completion of military service at the beginning of the first full regularly scheduled work period. For military leaves of absence between 31 and 180 days, the employee must submit an application to the employer within 14 days following the completion of military service. For leaves in excess of 180 days, the employee must apply for reemployment within 90 days of completing military service.

6. Inability to Return to Work. USERRA extends those time limits for up to two years if an employee is unable to return to work because of a service-related illness or injury. Any employee failing to report to work or reapply for employment within the appropriate time frames is subject to the employer's policies regarding any unexcused absence from work.


Employer duties to reemploy

At the conclusion of military service, an employee is generally entitled to reemployment to the position she would have held or attained but for the period of military service. In that respect, USERRA is contrary to the concept of employment "at will" and affects your personnel decisions during the period of active military service. Not surprisingly, failure to reinstate a former employee following a period of military service is one of the most common complaints under USERRA.

Employees serving less than 91 days of military service must be reemployed in a position they would have attained but for the period of military service, provided they're qualified for the position. If an employee isn't qualified for the position after you have made reasonable efforts to qualify her, you must return her to the position held before military service.

Employees absent for military service longer than 90 days must be reemployed in the position they would have attained or in a position of comparable seniority, status, and pay, provided they're qualified to perform the job. If a returning employee isn't qualified for the position, you must make reasonable efforts to qualify her for the position. If those efforts fail, you must return her to the position held before military service or a position of comparable seniority, status, and pay.

If you're reemploying an employee with a disability incurred or aggravated during military service, you must make additional efforts. First, you must make reasonable efforts to accommodate the employee's disability so she may become qualified for the position she would have attained if continuously employed. If she isn't qualified despite your reasonable accommodation efforts, she must be placed in a position of equivalent seniority, status, and pay as long as she's qualified for the position or can become qualified for the position through your reasonable efforts. Last, if the employee doesn't qualify for the equivalent position, she must be employed in a position that "most nearly approximates" the equivalent position in seniority, status, and pay.


Exceptions to reemployment rights

There are limited exceptions to the obligation to reemploy employees returning from military service. Reemployment isn't required when doing so would be impossible or unreasonable, such as when a reduction in force during the leave period has eliminated the employee's position.


Discharge protections

Once reemployed, USERRA affords returning servicemen and servicewomen protection from discharge without cause. The extent of that protection is based on the length of military service. Individuals reemployed after 181 days or more of military leave may not be fired without cause for a period of one year after reemployment. Individuals reemployed after 30 to 180 days of military service may not be fired without cause for six months after reemployment. There's no protection against discharge without cause for individuals serving less than 30 days.


Discrimination and retaliation protections

USERRA prohibits you from discriminating against persons with past or present military obligations when making decisions relating to hiring, promotion, reemployment, termination, and employment benefits. You're prohibited from retaliating against individuals who file complaints or exercise any right under USERRA.


Employee benefits

Under USERRA, employees on military leave are entitled to the same benefits provided to employees on other leaves of absence. For example, if you provide employees on Family and Medical Leave Act leave with continued health, life, or disability insurance or allow employees to continue to accrue vacation benefits, employees on military leave must be afforded the same benefits.

The commencement of military leave is a COBRA-qualifying event, and continued health insurance coverage is available to employees at their expense. On December 10, 2004, President Bush signed the VBIA into law, which expanded the continuation period for military families from 18 months to 24 months. The extended continuation period is effective for continuation elections made on or after December 10, 2004. If you haven't already done so, you should revise your health plan administration to reflect the extended continuation period available for employees entering military service.


Retirement/pension benefits

USERRA contains expanded pension rights for eligible employees. Periods of military service may not be treated as a break in service for an employer-sponsored pension plan. For vesting and accrual purposes, the military service period is considered service with an employer. You're required to make any pension contributions for employees returning from military service you would have made if they hadn't been on military leave.

If you sponsor a "contributory" plan that offers benefits only when the employee makes contributions, returning employees must be given three times the military service period, not to exceed five years, to make up any missed contributions. You're obligated to make matching contributions consistent with the amount contributed by the employee.


VBIA: notice of USERRA rights and duties

In addition to extending the health insurance continuation period from 18 to 24 months, the VBIA also requires you to notify present and returning employees of "the rights, benefits, and obligations of such persons and such employers" under USERRA. The notice requirement became effective on March 10, 2005, and can be met by posting a notice in the location other workplace notices are customarily hung. The U.S. Department of Labor's Veterans Employment and Training Service (VETS) has created a poster that contains the notices required under the VBIA. A color copy of the poster, suitable for printing, is available at no charge on the department's website.

USERRA technical assistance also is available from VETS, which can be accessed by calling (866) 4-USA-DOL or by visiting its website. at An interactive USERRA advisor is available online here.

City Fights Retaliation Claim at Trial

Posted by William W. BowserOn March 26, 2008In: Race (Title VII), Retaliation

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Yesterday, the local newspaper, The News Journal reported on an employment discrimination case that is currently in trial in the federal District Court in Wilmington, Delaware.

The plaintiff in the case is a 19-year veteran of the Wilmington Police Department who claims he was improperly demoted in retaliation for reporting offensive comments made by a supervisor. According to the officer’s attorney, he was demoted and denied transfers after he reported that another officer said that "all Puerto Ricans have low riders and fuzzy dice hanging from their mirrors" and that "all Puerto Ricans and Mexicans are alike."

The City of Wilmington, the named defendant in the case, alleges that the comment was taken out of context and that the demotion and denials of transfers were the result of the officer’s poor work performance.

Retaliation claims like this are clearly on the rise. According to EEOC data, retaliation claims have increased by approximately 100% during the period 1992-2006! (Link to a previous post on the rapid increase of charges filed with the EEOC here). Indeed, retaliation claims now comprise 30% of the total charges filed.

What steps can an employer take to miminimize the risks of retaliation claims?

First, it's important to have a policy prohibiting retaliation your harassment and discrimination policies.

Second, make clear in your policies that suspected retaliation must be reported and provide employees several avenues through which they can do that.

Third, make sure all supervisors and managers know that it's unlawful to retaliate against employees for protected activity, which includes formal charges of discrimination as well as internal complaints about harassment or discrimination.

Fourth, if you receive complaints about unlawful activity or are charged with discrimination, protect the source of those complaints as much as possible. One of the best defenses to a retaliation claim is that the person who supposedly retaliated wasn't even aware of the charge or complaint in the first place. Of course, in many situations, the employee's immediate supervisor must be told about a complaint so an adequate investigation can be conducted.

Fifth, treat the complaining employee as if nothing has changed. Remember, however, that filing a charge or internal complaint doesn't insulate the employee from future disciplinary action