Flow it, Show it, Grow it! My Hair! 2019-08-28T15:55:07-06:00

Posted on August 28, 2019

Race under Title VII is often framed as an “immutable characteristic.” Yet courts struggle with the notion that expressions of identity and culture can be extensions of race. Hair is a good example. One’s hair may be part of one’s racial identity, and it can serve as a proxy for race. Courts, however, have been reluctant to embrace a view of race to include, for example, African-American hairstyles, which might be, in the pragmatic sense, mutable characteristics.

California and New York recently became the first states to ban discrimination based on hair. The laws amend the definition of race to include traits historically associated with race, like hair texture and protective hairstyles. “Protective” hairstyles include “braids, locks, and twists.” The laws will challenge even facially neutral policies concerning grooming and appearance, which may disproportionately impact people of color based on Caucasian norms about professional appearance.

More states are likely to follow suit. Employers should review their grooming and appearance policies. Scrutinize policies requiring employees to keep a professional appearance to ensure they do not prohibit hairstyles associated with race. These policies should be based on legitimate business needs, not personal preferences. Make clear to management, and in your written policies, that discrimination based on natural hair and hairstyles is prohibited.

Supervisor’s Racial Epithets are “Hellish” Enough 2019-02-22T11:24:49-07:00

Posted on February 22, 2019

By Chance Hill

A defendant-employer won summary judgment on a racially hostile environment claim. The district court reached back to old cases and said the employee-plaintiff had to show the work environment was “hellish” to be actionable. On February 20, 2019, the Seventh Circuit disagreed.

The Seventh Circuit rejected the “hellish” standard, stating that a plaintiff’s evidence need not amount to the equivalent of the Ninth Ring or a descent into the Inferno. It also underscored that the district court’s analysis was flawed because it overlooked the difference between a co-worker uttering racially offensive remarks as opposed to a supervisor’s use of such toxic language—the latter of which is much more serious, according to the appellate court. The Seventh Circuit added that this concern is magnified when supervisors make derogatory and humiliating comments directly to the employee in question, compared to situations in which the employee may hear offensive comments secondhand.

The literary lessons here are twofold: (1) Dante’s Inferno did not set the bar for impermissible harassment, and (2) Marshall McLuhan’s famous phrase “the medium is the message” applies with great force to workplace harassment—toxic language coming from a co-worker is bad, but toxic language from a supervisor is terminal.

Fred Gates v. Board of Education of the City, No. 17-3143 (7th Cir. 2019)

Racist Picket Conduct Protected 2017-08-09T16:16:42-06:00

Posted on August 9, 2017

By Bill Wright

The NLRB holds – famously now – that sexist and racist conduct on a picket line is protected from adverse action unless the conduct is also violent and coercive. Despite a shot across its bow in Consolidated Communications, Inc. v. NLRB, (D.C. Cir. 2016), the Board continues to force employers to ignore sexist and racist conduct, and the courts continue to defer to the NLRB on the issue.

In Cooper Tire & Runner Co. v. NLRB, No. 1602721 (8th Cir. August 8, 2017), a picketer yelled racist comments at a van carrying strike-breaking workers. Some number of the strike breakers were African American, and the picketer yelled references to fried chicken and watermelon. When the strike and lockout ended, the company did not hire the picketer back, citing his conduct as unrelated to the picketing activity. An arbitrator found the termination to be for good cause, but the NLRB disagreed, overruled the arbitrator, and found an unfair labor practice. The court agreed with the board. The picketer had his hands in his pockets, and there was no evidence the employees in the van heard the comments or felt threatened or coerced.

The call for the NLRB to recognize public standards of employee civility, even in strike conduct, grows however. In Consolidated Communication, the criticism of the Board’s policy came in a concurring opinion. In Cooper Tire, Sr. Judge C. Arlen Beam dissented altogether. Judge Beam called for the NLRB to recognize that “the racial epithets expelled by [the picketer] were not simply tolerated, impulsive behavior. They were expressions that tended to coerce and intimidate African American employees in the exercise of rights protected under the Act.”

Spell Out Interview Results 2017-05-12T10:53:06-06:00

Posted on May 12, 2017

By Bill Wright

An employer in Mississippi will face trial on a claim of race discrimination because it has not explained the interview scores two candidates received. In Calvin v. MS Dept. Rehab. Servs., Civil No. 3:15-CV-827-HTW-LRA (S.D. Miss. May 4, 2017), the plaintiff claimed he was denied a promotion because of his race. He claimed he had more relevant experience than the Caucasian candidate; the employer asserted that the other candidate had scored better in the interviews and that the plaintiff could not prove otherwise. On the employer’s motion for summary judgment, the court ruled that the employer had not articulated a non-discriminatory reason for the employment action, because the employer had not explained the interview scores. The plaintiff also contended the questions themselves were designed to favor the other candidate, without regard for the duties of the position at stake.

The case is a warning for all employers. Having an “interview” does not cover underlying discrimination. Consider the job-relatedness of the questions and train the interviewers on scoring.

Disparate Impact Threat Can Set Policy 2017-01-04T11:30:26-07:00

Posted on January 4, 2017

By Bill Wright

A recent disparate impact claim over drug testing sets the stage for participants to dictate improvements in employer policies. In Jones et al v. Boston, No. 15-2015 (1^st Cir. Dec. 28, 2016), the court considered claims by police officers who had been adversely affected by the police department’s drug testing based on hair samples. Previously, the officers had shown that the hair testing was 99% accurate for white officers but only “over 98%” accurate for black officers. (The difference was claimed to be due to environmental contamination of the hair, that became more likely due to cosmetic treatments minority officers used more often.) The court determined that this difference – less than 1% – was statistically significant and therefore could support a disparate impact claim. The court then considered whether use of the hair sample test was job-related and consistent with business necessity and whether the department “refused” to implement a less discriminatory alternative.

All parties agreed that drug testing was job-related. The officers contended that the hair test was not consistent with business necessity because it was not 100% accurate. Fortunately for employers, the court rejected this argument. Business justifications do not need to be “anything near 100% accurate.”

The court also ruled the officers had identified a less discriminatory alternative — conducting a follow-up urinalysis test whenever the hair analysis came back positive. Although the additional test would only detect very recent drug use, adding it would, obviously, reduce the number of false positives and, therefore, was less discriminatory. Finally, the court ruled that the department had “refused” to implement this additional test because the officers’ expert witness had raised the alternative during the litigation.

The result? When employees challenge an employer’s policy, they may get to trial by (a) showing any statistically significant difference in outcome for minority individuals and (b) proposing any improvement on the employer’s policy that the employer fails to implement. Employers will have to carefully consider the risks when employees suggest improvements in policies, claiming disparate impact.

“Waterboy” a Protected Category 2015-12-28T10:00:21-07:00

Posted on December 28, 2015

By John Alan Doran

Adam Sandler fans will recall his Oscar-worthy starring role in the movie “The Waterboy,” in which he played a habitually-bullied waterboy for a college football team. Sandler played the part with an extremely pronounced Cajun accent. Little could Sandler have known when he made this gem back in 1998 that his character, Bobby Boucher, enjoyed protected category status under Title VII. However, a federal court recently ruled that Cajuns are sufficiently distinctive to be protected from discrimination under Title VII. Bourgeois v. U.S. Coast Guard (W.D. La. 2015) The trial court found that Cajuns enjoy a distinct culture, and a distinctive linguistic pattern and accent that makes them unique within the class of White employees. The case is an important reminder to think outside the box with respect to protected categories– the employee you think poses no risk under Title VII may very well enjoy protected status at the end of the day. And now, we close with this moving exchange from “The Waterboy”:

Dan Fouts: The waterboy just needed some water!
Brent Musburger: Wow, Dan, did you come with that all by yourself?
Dan Fouts: Shut up, Brent.

Common-Law Employee, But No Contract 2015-11-23T12:04:27-07:00

Posted on November 23, 2015

By Bill Wright

In Faush v. Tuesday Morning, Inc., No. 14-1452 (3d Cir. November 18, 2015), the court addressed race discrimination claims brought by a former temporary worker against the company he was assigned to assist. The plaintiff signed up with a staffing firm and was assigned to help set up a new retail store. While there, he alleges that the store manager accused him of theft, the manager’s mother sent him to work with the trash, and a store employee used a racial epithet. The plaintiff brought claims under both Title VII and Section 1981. The court determined the store manager’s authority to reject any unsatisfactory worker and his direct supervision of the temporary workers created at least a fact dispute about whether the store was the plaintiff’s employer, jointly with the staffing firm. This was enough for the Title VII claim to proceed. On the other hand, the store had no contract with the plaintiff, and so the Section 1981 claim was properly dismissed. Common-law, joint employer status apparently is not contract-based. However, the court called for changes to Title VII so it would clearly cover all clients of staffing firms. The fear is that clients and staffing firms might create careful contracts that assign all Title VII liability to the staffing firm. Watch for further calls for temporary staffing reform.

“Me Too” Evidence Doesn’t Cut It 2014-06-24T12:43:07-06:00

Posted on June 24, 2014

By Lori Phillips

In a case of first impression, Adams v. Austal, USA, LLC, No. 12-11507 (11th Cir. June 17, 2014), the Eleventh Circuit addressed whether an employee may rely on evidence of racial harassment of which he is not personally aware to prove that his work environment was objectively hostile. There, 24 African Americans sued their employer for racial discrimination claims, including hostile work environment. The district court granted summary judgment against 13 of them, concluding that though they met the subjective element of the severe-or-pervasive prong of a hostile work environment, they did not meet the objective prong. The employees appealed, arguing the district court erred by failing to consider evidence of racial harassment of which the individual employees were unaware—but of which other employees were aware. In affirming the district court, the 11th Circuit reasoned that the objective totality of a plaintiff’s workplace circumstances does not include other employees’ experiences of which the plaintiff is unaware until after his employment ended or what discovery later revealed.

The 11th Circuit’s decision is in line with those of the 6th, 7th, 8th, 9th, and 10th Circuits. This case prevents employees from alleging a hostile work environment on “me too” evidence alone.

History + Pretext = Trial 2014-05-28T13:26:46-06:00

Posted on May 28, 2014

By Bill Wright

A history of workplace racial imbalance might undermine your legitimate non-discriminatory reason for a promotion decision. In Ahmed v. Johnson, No. 13-1054 (1st Cir. May 21, 2014), the plaintiff argued he was passed over for promotion because of his race, national origin, or religion. A supervisor, who had recommended three other men for promotion, asserted he did it based on qualifications, but, in some respects, it looked like he recommended people he knew well. Consequently, his stated reliance on qualifications might well have been a pretext for some other motive – favoritism? cronyism? not necessarily illegal discrimination. To tip the balance, the court relied on evidence of past hiring and promotion decisions that “entirely excluded African-Americans and, perhaps, Muslims.” Given the evidence of pretext, plus the history, the court sent the case to trial.

Courts made the decision-makers here the victims of their circumstances, but only because there was evidence they mischaracterized their actual reasons for the promotion decisions. Play it straight.

Cat’s Paw Revisited 2013-11-08T22:10:49-07:00

Posted on November 8, 2013

By Bill Wright

Stalking the string of “cat’s paw” cases after the Supreme Court’s 2011 decision in Staub v. Proctor Hosp., a former employee recently asserted that his manager’s bias against Hispanics caused the employer to terminate his employment – not because the manager made the decision to discharge the employee, but because the actual decision-maker relied on information from the manager. The former employee’s attempt to scratch the employer failed, because although the manager brought some of the employee’s misconduct to light – including lying on his resume and a supposedly false expense report – the employer and its Human Resources staff independently investigated the allegations. According to this court, an employer is NOT liable for discrimination, even if a biased report from a supervisor is part of the chain-of-events, so long as the employer independently determines that, apart from the report, the discharge is entirely justified. A computer search and an HR investigation may be all it takes to justify a termination. Of course, it helps, as in this case, if the former employee admits both that he “technically” lied in his interview and on his expense report. Lobato v. New Mexico, No. 12-2128 (10th Cir. November 5, 2013).

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