Articles Posted in Race Discrimination

Many sports fans have been following the situation in Miami involving the claims of former Dolphins lineman Jonathan Martin. Martin, who is African American, claims that his teammates, including fellow lineman Richie Incognito, racially harassed him. Martin left the team because of the harassment. Could the Dolphins be legally liable for Incognito’s harassment? The answer is, it depends.

The harassment would have had to have been severe or frequent enough to create a hostile work environment. Given reports of repeated use of racial slurs, Martin would likely be able to prove that a hostile work environment existed. An important factor in the case, however, is that it involved co-worker harassment. Incognito and other players were not Martin’s supervisors and that makes a big difference in harassment cases.

Because this case would involve co-worker harassment, for the Dolphins to be held liable for racial harassment, Martin would have to prove that Dolphins team management, such as the coaching staff, knew or should have known about the harassment and failed to take reasonable steps to correct the problem. If Martin didn’t complain to management about the harassment before he left the team, it could be difficult for him to prove that management knew or should have known that he found any of the harassment offensive. Based on reports from several Dolphins players, it was quite common for players to give each other a hard time and make fun of each other. In that environment, team management may convincingly claim that they didn’t know that Martin found the harassment as offensive as he obviously did. Of course, even in that type of environment, there are lines that should not be crossed–such as calling someone a racial slur. If Dolphins team management knew about the racial slurs and did nothing, the team could be in legal trouble. Martin shouldn’t have to tell anyone that he found the use of racial slurs offensive for team management to discipline those who uttered the slurs.

In July 2012, we reported that a class of African American plaintiffs had sued the retailer Wet Seal for race discrimination. In support of their claims, the plaintiffs obtained emails that contained powerful evidence of race discrimination. Wet Seal and the plaintiffs recently settled this case. As a result of the settlement, Wet Seal will, among other things, pay $7.5 million, change its policies to increase the racial diversity of its employees, and expand its human resources department so that it can better investigate discrimination complaints.

“With this settlement, Wet Seal is attempting to right its wrongs,” said Sherrilyn Ifill, director-counsel of the NAACP Legal Defense and Educational Fund. “The fight for equality in the workplace is far from over in America.”

Yesterday, three former employees of the retail clothing store Wet Seal sued the company alleging that it engaged in a pattern or practice of discrimination against African Americans. Attached to the lawsuit was an email from the Senior VP of Store Operations who, after performing a variety of store visits, said about the stores “African American dominate – huge issue.” The lawsuit also alleges that corporate executives threatened store managers with termination if they did not staff more white employees in their stores. The Senior VP of Store Operations allegedly called this effort to hire more white employees “lightening up” the stores.

The email attached to this lawsuit is a particularly powerful piece of evidence of discrimination. It is quite rare to find an email like that because most managers who decide to discriminate against a particular race of people do not document their intentions. It is possible that this Wet Seal executive never thought that her email would leak out to people who would use it against the company.

This case illustrates how overt race discrimination still occurs in corporate America. However, since companies rarely document these discriminatory motives, most successful employment discrimination cases depend on circumstantial evidence like proof that one race of employees receives better treatment than another. If you believe that your employer is discriminating against you because of your race, you should contact an experienced employment lawyer to learn more about your rights and how you can enforce them.

Yesterday, the Maine Human Rights Commission unanimously found that Families Matter, Inc., an employer located in Hallowell that provides services to young adults with special needs, discriminated against its former employee, Lisa Pierce, based on her race and ethnicity. Ms. Pierce served as an Assistant Director for the company’s Skowhegan location. She is bi-racial (Hispanic and Native American) and her national origin is Puerto Rican.

According to the company’s former Personnel Director, the company’s Executive Director, Edward McNaughton, once said, about Ms. Pierce, “I didn’t know you hired a woman of color.” Additionally, he said that he once had a conversation about employee holidays with Mr. McNaughton. When he said that Martin Luther King Day is generally given to employees as a holiday, Mr. McNaughton replied “over my dead body.” He replied “old school huh?” and Mr. McNaughton replied “you have no idea.” The former Personnel Director also told the MHRC investigator that Mr. McNaughton once revealed that he believed in “pure heritage.” Another witness corroborated the former Personnel Director’s testimony. She heard Mr. McNaughton refer to Ms. Pierce as the “colored girl.” This witness also told the MHRC investigator who investigated the case that Mr. McNaughton is a bigot who talks down to people.

The MHRC found that, during her employment, Ms. Pierce was treated differently than other Assistant Directors. For instance, contrary to standard protocol, she was not given the chance to defend herself in response to criticism from a client’s sister. Ms. Pierce also did not receive information about management decisions that the other Assistant Directors received, which made it difficult for her to perform her job and left her at a disadvantage when she interacted with her peers and management.

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued updated Enforcement Guidance titled “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.” The EEOC updated its guidance in this area because, during the twenty years since it first issued guidance on this issue, employers have gained easier access to criminal records through new technology. Also, at least one court has suggested that the EEOC update its guidance. The guidance explains how an employer can discriminate against an employee or applicant on the basis of his race or ethnicity if it misuses criminal history information.

Nationally, African Americans and Hispanics are arrested and incarcerated in numbers disproportionate to their representation in the general population. Thus, employers who rely on criminal records to make hiring decisions are more likely to screen out African Americans and Hispanics than whites. As such, caution is warranted when using criminal records to make hiring decisions. If an employer does not comply with the EEOC’s guidance on the use of these criminal records, it risks violating Title VII of the Civil Rights Act.

If you are African American or Hispanic and an employer has deprived you of a job opportunity because of your criminal history, you should contact an experienced employment lawyer to learn more about your rights.

Last year, the U.S. Eleventh Circuit Court of Appeals in Atlanta held that no jury could reasonably find that a Tyson Foods manager harbored racial animus against an African American man, John Hithon, even though he referred to Hithon as “boy.” The court’s ruling followed a 2006 ruling from the U.S. Supreme Court in which the high court rejected the Eleventh Circuit’s holding that the use of the term “boy” alone, without a modifier like “black,” is not evidence of race discrimination. Despite the Supreme Court’s rebuke, the Eleventh Circuit continued to hold that the manager’s use of the term “boy” did not evidence race discrimination.

Following the Eleventh Circuit’s decision last year, Hithon’s attorneys petitioned for a full or “en banc” hearing before the entire Eleventh Circuit Court of Appeals, instead of just the three judge panel that decided the case. A group of civil rights leaders filed a brief in support of the plaintiff, too. Bowing to this pressure, the three judge panel decided to reverse itself. On December 16, 2011, the three judge panel held that the use of the term “boy,” among other pieces of evidence, could permit a reasonable jury to find that the manager discriminated against Hithon because of his race.

Stephen B. Bright, the president of the Southern Center for Human Rights, said that this about face from the court demonstrates “how judges manipulate facts and law to make a case come out the way they want it to.” “The new opinion flatly contradicts the first one in several places,” Mr. Bright said.