Flow it, Show it, Grow it! My Hair!

By Joseph Hunt 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, […]

Supervisor’s Racial Epithets are “Hellish” Enough

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 […]

Racist Picket Conduct Protected

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 […]

Spell Out Interview Results

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 […]

Disparate Impact Threat Can Set Policy

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 (1st 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 […]

“Waterboy” a Protected Category

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 […]

Common-Law Employee, But No Contract

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. […]

“Me Too” Evidence Doesn’t Cut It

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 […]

History + Pretext = Trial

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 […]

Cat’s Paw Revisited

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 […]