Articles Posted in Race Discrimination

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An African American man, Russell Lopes, recently won a $4 million jury verdict in a case against the Town of Brockton. Lopes’ attorneys argued that Brockton discriminated against him because of his race when it refused to hire him for a job with the Department of Public Works (DPW) and then retaliated against because he spoke out against the discrimination. At the time of the events, Brockton had a far lower percentage of non-white DPW employees than the non-white population of Brockton. Lopes’ attorneys uncovered evidence that they believed showed that Brockton had rigged its hiring process in favor of white applicants.

“When you looked at the evidence, you looked at the data, the facts and listened to the testimony, you realized Brockton had bent, twisted and broken every single rule they had in order to favor white people in the application process,” said Lopes’ attorney.

According to Lopes, he applied for a job with DPW and he had far more than the required 3-5 years of experience. He included reference letters and positive performance reviews with his job application. Nevertheless, Brockton told him that it decided not to hire him because of a lack of experience. Lopes tried to get an explanation for why Brockton said he lacked experience because he believed that he clearly had sufficient experience. He said that no one with the Town would give him an answer. So, he spoke to the press about what happened.

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Yesterday, the U.S. First Circuit Court of Appeals, which covers Maine and other New England states, ruled against the Boston Police Department (BPD) in a race discrimination case. The plaintiffs in the case allege that BPD’s use of a hair test to detect drug use has an unlawful disparate impact against black people. The First Circuit held that that BPD may have refused to use a drug test that would have both met its need to detect drug use and not had an adverse impact against black people.

This was the second trip to the First Circuit for this case. As we previously reported, experts for the plaintiffs testified that black people tend to have higher levels of melanin in their hair which causes cocaine and associated chemicals to bind to their hair at a higher rate.  Cocaine and associated chemicals binds to hair when cocaine powder is in the air or when the person has undergone certain cosmetic hair treatments which are more common in the African American community.  These experts also testified that hair tests are relatively unreliable.  In fact, the federal government has refused to authorize hair tests in the screening of federal employees and employees of private industries for which the federal government regulates their drug testing.

The First Circuit determined that BPD’s use of the hair test was “job related” and “consistent with business necessity,” as required by the Civil Rights Act in cases where an employment practice has a disparate impact against racial groups, because the hair tests, while imperfect, were reliable enough. But the First Circuit also determined that BPD may have violated the Civil Rights Act because BPD knew of a less discriminatory alternative to the hair test and refused to use it. That alternative was called the “hair testing plus urinalysis test” and, as the name suggests, involves using a hair test and urinalysis test in tandem to detect drug use. The First Circuit found that there was evidence that this alternative test would have caused less adverse impact against black people while at the same time satisfying BPD’s need to detect drug use.

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Four current and former Massachusetts State Police troopers have sued the Massachusetts State Police for allegedly engaging in a pattern of discrimination against women and minorities.  The four named plaintiffs are three women and one black man.  Their lawsuit alleges that the Massachusetts State Police discriminates against women and minorities through its promotional and assignment practices.  The attorneys representing the troopers have identified other similarly situated troopers who have also faced discrimination, indicating a possible intent to pursue a class action.
One of the discriminatory practices identified involves alleged word-of-mouth advertising of promotional opportunities.  The plaintiffs claim that the Massachusetts State Police does not publicly post openings for many high-ranking and better-paying jobs.  Instead, they claim, the opportunities are not advertised at all or, if they are, they are only advertised for a very short time.  They claim that this practice results in white men getting favorable treatment. 
Word-of-mouth recruitment practices in organizations that lack diversity often have a disparate impact on minority groups within the organization.  If, for example, an organization is comprised overwhelmingly of white men (a “good ole boys’ network”), the U.S. Equal Employment Opportunity Commission (EEOC) has warned that word-of-mouth recruitment can disproportionately weed out women and minorities.  Studies show that word-of-mouth recruitment results in disparate impact against minority groups in workplaces that lack diversity because of “segregated networks” of communication, meaning that members of the majority group tend to communicate among themselves more than with minority groups.
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In recent years, lawmakers have debated whether to prohibit employers from asking about criminal history on job applications.  Those who want to prohibit questions about criminal history in job applications have used the slogan “Ban the Box” because they want employers to remove “yes” or “no” checkbox questions about criminal history from their applications.  Supporters of Ban the Box laws believe that the laws will help black workers who are statistically more likely to have criminal histories than white workers.  They believe that black applicants will have a better chance of getting called for an interview if they do not have to reveal a criminal history on a job application.

Some states and cities around the country have enacted Ban the Box laws.  Researchers recently looked at the effects these laws had on black workers as compared to white workers in New York City and New Jersey.  Surprisingly, these researchers found that Ban the Box laws actually hurt black applicants’ chances of getting called for an interview.

What could explain this counter-intuitive result?  The researchers who conducted the study have several theories.  One theory is that when employers have information about applicants’ races but not their criminal histories, employers base their decisions on the knowledge that, in general, black people are more likely to have criminal histories than white people.  While employers cannot require an applicant to reveal her race on a job application, they can infer race from other information such as the address and name of the applicant.  If an employer believes that an applicant is black and is unable to determine whether the applicant has a criminal history, it may act under the assumption—either consciously or unconsciously—that the black applicant has a criminal history.

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A recent research study has cast doubt on the theory that the unemployment rates of minorities will decrease if employers cannot screen applicants by credit history.  There has been discussion among lawmakers around the country about legislation that would prohibit employers from considering credit history when they hire employees.  Some places have already passed such laws.  A bill has been debated in the Maine legislature in recent years that would place limits on when employers could consider credit history.  The rationales for such legislation are normally (1) minority applicants, particularly African American applicants, tend to have worse credit than white applicants and/or (2) credit history is a poor indicator of how good of an employee an applicant will be and, thus, it does not make sense to let employers access applicants’ private financial information.  However, this recent study, performed by an economist from the Federal Reserve and a professor from Harvard, shows that minority employment rates actually decreased in states that instituted bans on credit history checks.  So, what gives?

To understand these results, one of the researchers who conducted the study explained that “employers have many screening measures to narrow down who they want to hire” and “if you take one away, they’ll put more weight on the others.”  When a law eliminates one screening method, such as credit history, employers put greater emphasis on other screening methods.  Employers use credit history as a proxy for personality traits such as trustworthiness.  Without credit history as a proxy, some employers may just fall back on impressions gleaned from interviews where unconscious bias against minorities can more heavily influence hiring decisions.

Does this mean that legislators should not pass laws that prohibit consideration of credit history in hiring decisions?  Not necessarily.  There is still ample evidence that credit history is a poor indicator of whether an applicant will be a good employee and, thus, it is unnecessary for employers to intrude upon applicants’ private financial information.  With respect to minority employment, this study shows that unless other measures are taken to combat systemic barriers to minority employment, just focusing on the disparities in credit histories will not improve minority employment and, at least according to this study, might make it worse.

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This week a federal court in Massachusetts held that a reasonable jury could determine that the Old Colony YMCA subjected an African American employee to racial harassment that created a hostile work environment. The African American employee, Jessika Boone, worked for the YMCA as a caseworker in the YouthBuild program. The YouthBuild program is a community-based educational and vocational training program that serves disadvantaged young people from the Brockton area, over half of whom are African American.

According to Boone, during her time working in the YouthBuild program, a co-worker and a supervisor made racially charged comments about African American people. For example, one employee said that he did “not know why people get so mad about slavery.” Another employee allegedly referred to an African American employee of Egyptian descent as a “dune coon.” A supervisor asked an employee during a meeting if he had seen a pornographic movie called “Big Black Cocks.” Boone’s supervisor also allegedly acted hostilely toward her in ways—such as calling her a “bitch” and “fucking idiot” and giving her the middle finger—that he did not do to white employees. Based on the evidence that Boone presented, the court held that “a reasonable jury could find that she was subjected to a hostile work environment based on her race.”

Many people assume that this type of overt racism does not occur in the workplace any more but that is a flawed assumption. People still utter racial epithets and racially insensitive language in the workplace. The Maine Employee Rights Group has experience with these types of cases representing workers with stories similar to Ms. Boone’s.  If you work in Maine and have experienced this type of racial harassment, call us to learn more about your rights.

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This week a jury in Suffolk County Superior Court found that the City of Boston discriminated against city employee Chantal Charles because of her race. Charles, a black woman of Haitian descent, worked as a senior administrative assistant in the City’s Treasury Department. She alleged that the City and the City’s First Assistant Collector-Treasurer, Vivian Leo, discriminated against her when they denied her promotions, pay raises, overtime pay, and compensation for performing the duties of a supervisor. Charles also alleged that the City retaliated against her after she filed a complaint with the Massachusetts Commission Against Discrimination.

In a report on the City’s workforce issued earlier this year, analysts reportedly found that the Treasury Department is one of Boston’s least diverse departments with white workers constituting over two-thirds of the department. This report appears to have supported the arguments that Charles’ lawyers made at trial. They argued that Charles was the victim of a pattern of discriminatory treatment in the Treasury Department.

The jury awarded Charles $390,000 in economic damages, $500,000 for emotional distress, and $10 million in punitive damages. In a press release, Charles’ lawyers said that the “scope of the punitive damages award shows that the jury found the City and Ms. Leo’s conduct was outrageous and egregious.”

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Earlier this month, the U.S. Fourth Circuit Court of Appeals, in Virginia, held that a race discrimination class action against Nucor Corporation could proceed. This decision marked the second time that this appellate court has reversed the trial judge’s decision not to let the class action proceed.

The case centers around a plant in South Carolina where workers melt, form, finish, and ship steel products to customers. The plaintiffs represent a class of black employees at that plant. Before the plaintiffs initiated legal action, the plant had 611 employees; 71 of those 611 employees were black but only one supervisor in the entire plant was black.

The plaintiffs have alleged that systemic discrimination existed at the plant that (a) worked to deprive them of equal opportunities for promotions and (b) led to a hostile work environment. The trial judge decided to let the hostile work environment claim go forward as a class action but had refused to permit the promotion claim to go forward. The Fourth Circuit considered the statistical evidence that the plaintiffs presented as well as anecdotal evidence of discrimination against black workers at the plant. The Fourth Circuit held that this anecdotal evidence not only supported the hostile work environment claim but also supported the promotions claim. Some of this anecdotal evidence was as follows:

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At the last meeting of the Maine Human Rights Commission (MHRC), the Commissioners found reasonable grounds to believe that Hartford Installations, a company based in Damariscotta and South Portland, discriminated against a former employee because of his race and retaliated against him when he complained of the discrimination. The former employee, Jaime Guevara, is an immigrant from El Salvador.

According to a news report about the case, Mr. Guevara claimed that when Hartford Installations sent him to a job in Pennsylvania for three months, a project manager in Pennsylvania called him racist names like “Mexican, midget, and lazy.” This project manager also refused to pay Mr. Guevara all of the wages he earned because the project manager allegedly thought “Mexicans do not deserve to get paid so much.” Mr. Guevara complained to another project manager about this discriminatory treatment but that project manager refused to do anything to stop the discrimination.

When Mr. Guevara returned to Maine from the job in Pennsylvania, he says that he complained again to the company about how the project manager in Pennsylvania had discriminated against him. In response, he claims that the company reduced his hours. Mr. Guevara says that the company told him it reduced his hours because of what happened in Pennsylvania. The company later demoted Mr. Guevara and cut his pay by 25% allegedly because of his discrimination complaints.

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A Connecticut appeals court recently ruled that an ambulance company could legally discriminate against a volunteer on the basis of her race. The volunteer who brought the case, an African American woman named Sarah Puryear, alleged that her ambulance company discriminated against her because of her race.  Ms. Puryear alleged, among other things, that she “was subject to verbal harassment and an abusive working environment,” which included “inappropriate comments about the ‘ghetto’ and Africa.” The ambulance company argued that Connecticut’s discrimination law does not protect volunteers from discrimination because they are not employees. Thus, the ambulance company argued, even if it did discriminate against Puryear because of her race, it did not violate the law.

The court agreed with the ambulance company’s argument and adopted a legal test for determining whether a worker is an employee entitled to protections from discrimination. This legal test, called the “remuneration test,” requires a worker to show that she received some financial benefit from the employer for the work that she performed before she is entitled to protection from discrimination.

The court borrowed the remuneration test from federal case law that interprets Title VII of the Civil Rights Act. Nina Pirrotti, President of the Connecticut Employment Lawyers Association, disagreed with this decision. Ms. Pirrotti did not represent either party in the case. But she said that, if she had represented Ms. Puryear, she would have argued that Connecticut’s anti-discrimination law is more protective than federal law and, as such, the court should not have adopted the remuneration test from federal case law. She said that Connecticut courts have refused in the past to adopt standards from federal law when they interpret Connecticut’s anti-discrimination law, such as in Vollemans v. Town of Wallingford.