Articles Posted in Race Discrimination

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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.

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A group of former McDonald’s employees have sued the McDonald’s corporation and the franchises where they worked for race and sex discrimination.  The employees who filed the lawsuit worked for McDonald’s restaurants in Boston and Clarksville, Virginia.  Their allegations of discrimination include claims that the restaurants believed that their employees were too “dark.”  So, the plaintiffs claim, the restaurants fired black and Hispanic employees so that they could replace them with white employees.  The female plaintiffs also claim, among other things, that they experienced sexual harassment, including inappropriate touching and sexual comments.

This lawsuit is particularly noteworthy because of the claims against the McDonald’s corporation.  The McDonald’s business model involves contracting with smaller independent companies, called franchisees, and letting those franchisees run the restaurants.  This business model normally gives the corporation, called the franchisor, the advantage of limiting its liability from lawsuits.  That way, if a customer, for example, gets injured because of a restaurant employee’s negligence, the customer can sue the franchisee but not the franchisor.  In this race and sex discrimination lawsuit, however, these former employees allege that McDonald’s corporation exercises so much control over its franchisees that they are no longer independent.

The plaintiffs in the lawsuit allege, among other things, that McDonald’s corporation controls its franchisees through policies and manuals that govern every aspect of restaurant operations; continual oversight by corporate representatives; control over franchisee employees’ schedules and assignments; comprehensive training of all employees; and hiring decisions.  Given this amount of control, the plaintiffs argue that the franchisor-franchisee relationship is just a legal fiction.  Given the realities of the relationship between McDonald’s corporation and its franchisees, the plaintiffs argue, the McDonald’s corporation should be held responsible for the discriminatory actions of its franchisees.

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This week, protesters in the Chicago-area community of Forest Park reportedly decried racial discrimination against African Americans in hiring at Ferrara Candy.  Ferrara Candy makes candies such as Red Hots and Lemonheads.  The company and two staffing agencies it uses have been accused of discriminating against African American laborers in favor of Latino laborers.

There is a pending class action lawsuit against Ferrara and these two staffing agencies.  A federal judge rebuffed the companies’ motion to dismiss the class action lawsuit this past July.  The plaintiffs in that class action have alleged that the vast majority of laborers sent to work at Ferrara from the two staffing agencies at issue were Latino.  The plaintiffs believe that Ferrara instructed the staffing companies to send them only Latino laborers to work in the Ferrara factory.  This would explain why, according to the plaintiffs, the staffing agencies recruit laborers primarily through Spanish-language media; and one of the staffing agencies conducts employee orientations in Spanish.  Some Latino witnesses have also stated that where they work at Ferrara all of the employees are Latino.

“Ferrara Candy makes millions of dollars, particularly in the Halloween season, on the folks in this community.  We want them to ensure the people who make their candy in this community are the folks that actually live in this community,” said Elce Redmond, organizer with the South Austin Coalition Community Council. About 32% of the population of Forest Park is African American.

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Tatsha Robertson, a former Senior Editor for People magazine, has sued People and its parent company, Time, Inc., for race discrimination.  Robertson, who is African American, alleges that People Magazine laid her off because of her race.

According to Robertson’s lawsuit, “behind the cover and pages of People magazine, is a discriminatory organization run entirely by white people who intentionally focus the magazine on stories involving White people and White celebrities.”  The lawsuit goes on to cite examples of stories that People decided not to publish because they did not concern “white middle class suburbia.”  According to the lawsuit, Robertson was the only African American Senior Editor, among eight Senior Editors, at People and the only African American to ever serve in that position in the history of People magazine.  Moreover, she alleges that there were no African Americans in leadership positions above her at People.

Robertson, an award winning editor, began to work for Time at another one of its magazines, Essence.  While Robertson worked at Essence, according to the lawsuit, Essence published multiple stories related to President Obama and First Lady Obama as well as other presidential candidates during the 2008 presidential campaign.  Before this, according to the lawsuit, People had always been recognized for its coverage of the White House and, for that reason, in 2009, Time’s Human Resources department recruited Robertson to move from Essence to People.

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Fifty years ago, in July 1964, President Lyndon Johnson signed the Civil Rights Act of 1964 into law.  Through this landmark piece of legislation, the federal government sought, among other things, to dismantle abhorrent “Jim Crow” laws in the South which rendered African Americans second class citizens.

A strong minority of legislators in Congress fought bitterly to try to defeat the Civil Rights Act.  They argued that the Civil Rights Act would unconstitutionally usurp state rights and impair individual liberty.  Thanks, in part, to the work of civil rights activists like Dr. Martin Luther King and John Lewis, who helped the entire nation and its members of Congress to see the horrors of segregation and Jim Crow, enough members of Congress banded together to pass the law.

Interestingly, before the Civil Rights Act passed, opponents to the law added an amendment to bar sex discrimination in employment.  This tactic backfired.  Title VII of the Civil Rights Act, which prohibits employment discrimination, passed with not only landmark protections against race discrimination, religious discrimination, and national origin discrimination, but also with landmark protections against sex discrimination.

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The U.S. First Circuit Court of Appeals has held that the Boston Police Department may have violated Title VII of the Civil Rights Act because it used a drug test that analyzed hair samples which had a disparate impact on African American police officers.  After looking at the statistical differences between the rates at which the drug tests yielded positive results for African American and white police officers over an eight-year period, the court was “almost certain that the difference in outcomes associated with race over that period cannot be attributed to chance alone.”

Experts for the African American officers who brought the case believe that these differences in drug test results occurred, in part, because African Americans’ hair differs from white people’s hair.  These experts testified that African Americans 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.

Now that the First Circuit has determined that this hair sample drug test had a disparate impact on African Americans, the Boston Police Department, and related defendants, must prove that the drug test is “predictive of or significantly correlated with” drug use.  If they cannot prove that their drug test sufficiently predicts drug use, they will be liable for violating Title VII.  If they can prove that their drug test sufficiently predicts drug use, the African American police officers could still prevail if they can show that there is an alternative drug test that also predicts drug use but that does not have as large of a disparate impact on African Americans as the hair test.

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Bed Bath & Beyond has agreed to a settlement with New York’s Attorney General regarding the company’s policy of refusing to hire all applicants with past criminal convictions.  In New York, with the exception of law enforcement jobs, it is illegal for employers to categorically refuse to hire all applicants with criminal convictions.  Instead, New York law requires employers to individually consider applicants with criminal convictions before they may refuse to hire them based on their conviction.  In making their decision, employers must consider factors such as the specific duties associated with the job, how long ago the applicant was convicted of the crime, and the seriousness of the crime.  Applicants with a 20 year old conviction for marijuana possession, for instance, should not be treated the same as someone who was just released from prison for attempted murder.

“This agreement puts employers on notice that slamming the door on job seekers based on past conduct without deciding whether that conduct is relevant to the current job is not only wrong -– it’s unlawful,” said New York’s Attorney General, Eric Schneiderman.

“Excluding anyone with a criminal history from employment undermines public safety,” said Madeline Neighly of the National Employment Law Project, an organization that advocates for workers’ rights. “Employment is key to reducing recidivism and strengthening families and community involvement.”

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