Articles Posted in Race Discrimination

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This week, the U.S. Third Circuit Court of Appeals resurrected a class action lawsuit which alleges that the Southeastern Pennsylvania Transportation Authority (SEPTA) violated the Fair Credit Reporting Act (FCRA) when it refused to hire applicants based on their criminal history reports without first giving the applicants a chance to review the reports.  The FCRA regulates how companies may use consumer reports for a variety of purposes, including hiring.  And the FCRA has a broad definition of the term “consumer report” which includes criminal history reports.  Under the FCRA, employers must provide copies of criminal history reports to applicants and give them notices about their rights under the FCRA before they refuse to hire them based on their criminal history reports.

SEPTA argued that the plaintiffs in this case suffered no actual harm from SEPTA’s violation of the FCRA because the plaintiffs do not dispute the accuracy of the criminal history reports and the crimes they committed disqualified them from employment.  The Third Circuit rejected this argument, in part, because the FCRA not only protects an applicant from suffering harm due to an erroneous consumer report; it also gives him the opportunity “to advocate for [the report] to be used fairly—such as by explaining why true but negative information is irrelevant to his fitness for the job.”

The trial court had dismissed the case and, as such, this Third Circuit victory breathed new life into the case.  Ossai Miazad, the lead attorney for the plaintiffs, said, “this is a significant victory for our clients, who first challenged SEPTA’s unfair background check hiring policies and practices in 2016.  This ruling is an important affirmation that a defendant like SEPTA cannot block access to the court and cannot avoid scrutiny of their actual employment practices that serve to unfairly deny employment to individuals like our clients who have paid their debt to society.”

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Starbucks has decided to institute company-wide training on implicit bias. The company’s decision came on the heels of an incident where Starbucks employees called the police to remove some black people from the store for doing something that white people do all the time. These black people were waiting for a friend before they bought their coffee. It is, of course, possible that conscious racism against black people motivated these employees to call the police. However, it is more likely that implicit bias, motives that people don’t think about but that cause them to act in certain ways, caused these Starbucks employees to call the police.

Psychologists have studied the phenomenon of implicit bias for decades. Pretty much everybody has an implicit bias against certain groups of people and in favor of other groups of people. For instance, regardless of how much they abhor racism, almost everyone who is not black has implicit bias against black people which unconsciously drives their actions when they interact with black people.

One of the consultants assisting Starbucks believes that companies need to implement systems where employees work together to combat implicit bias, as opposed to asking individuals to police their own biases. “Any strategy that essentially relies on people to try not to be biased is doomed to fail; that’s the heart of the problem,” said David Rock, director of the NeuroLeadership Institute. “You’ve got to shift the focus from individuals trying not to be biased to teams being able to catch bias,” he said.

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non-violence-1160132_1920-300x300This month marks the 50th anniversary of Dr. Martin Luther King, Jr.’s assassination in Memphis.  Dr. King went to Memphis 50 years ago to help black sanitation workers receive fair treatment in the workplace.  The City of Memphis treated black sanitation workers far worse than white sanitation workers.  White sanitation workers, for instance, could shower at work after they finished the filthy job of collecting people’s trash but black sanitation workers could not.  The City also did not provide black sanitation workers with shelter from storms which led to two black sanitation workers getting crushed to death inside of a trash truck where they took shelter during a storm.  To secure better working conditions, the black sanitation workers went on strike.

The union that these black sanitation workers formed back in the 1960s is still around today.  That union is still trying to secure better working conditions for its members, including air conditioning in garbage trucks, better pay, and benefits for temporary employees.

Employment discrimination against black workers has changed a lot since 1968 but racial prejudice against black people still impacts the workplace.  In Memphis, a majority black city, the poverty rate for black residents is twice the poverty rate for white residents.  “I love Memphis. I’m so optimistic about our future,” said Memphis Mayor Jim Strickland. “But I don’t want to act like I’m ignorant of our challenges. Violent crime is way too high. Poverty is way too high.  And too few kids are getting properly educated.”

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In response to complaints of systemic problems with harassment and discrimination, Uber has fired 20 employees, including some senior executives.  The company has also disciplined others and is still investigating additional complaints.  This is a major shakeup at Uber, a ride sharing service based in California, that comes shortly after the company received a report from a team of lawyers who reviewed its workplace climate.

Uber hired this team of lawyers, led by former Attorney General Eric Holder, amid complaints from some Uber employees that the company prized aggressive growth so much that it would look the other way when some employees engaged in harassment or discrimination.  Uber hired another law firm, Perkins Coie, to assist with the problem as well and that firm has been investigating individuals’ complaints. Perkins Coie has investigated 215 complaints and about 100 of those resulted in actions taken against employees for sexual harassment or other forms of discrimination.  There are still complaints under investigation. 

The problems at Uber are not unique to Uber.  Harassment, in particular, is an epidemic in American workplaces.  Far too many workers face problems with sexual harassment, racial harassment, and other forms of unlawful harassment.  As we’ve previously reported, the U.S. Equal Employment Opportunity Commission (EEOC) formed a task force that heard from a variety of experts on how to address this epidemic.  The EEOC issued a report that provides a variety of recommendations for preventing harassment and changing workplace cultures that permit harassment to occur. 

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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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