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.

NLRB Benchslap: Enabling Racism/Sexism 2016-09-20T14:58:57-06:00

Posted on September 20, 2016

By John Alan Doran

One highly-respected federal appeals court judge recently called the NLRB out for its history of condoning strike behavior that is racist and sexist. In Consolidated Communications, Inc. v. NLRB, No. 14-1135 (D.C. Cir. September 13, 2016), the D.C. Circuit Court of Appeals enforced part of an NLRB order on an employer’s discipline of strikers. Judge Patricia Millett, whose name has come up as a possible replacement for Justice Scalia, authored the unanimous opinion. But Judge Millett then took the extraordinary step of authoring a separate concurring opinion. Judge Millett dissected and debunked the NLRB’s long line of striker misconduct cases, finding that “[t]hose decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace.” And thus, Judge Millett verbalized what many employers have been noting for decades—the double-standard the Board applies to strikers behaving badly when they attack those who cross the picket line with demeaning and degrading messages “that for too much of our history have trapped women and minorities in a second-class workplace status.”

We congratulate Judge Millett for her criticism of this double standard. And, the best way to end this post is with another quote from Judge Millett: “While the law properly understands that rough words and strong feelings can arise in the tense and acrimonious world of workplace strikes, targeting others for sexual or racial degradation is categorically different. Conduct that is designed to humiliate and intimidate another individual because of and in terms of that person’s gender or race should be unacceptable in the work environment. Full stop.”

General Contractor, Not Employer 2015-03-16T09:04:52-06:00

Posted on March 16, 2015

By Emily Keimig

JP Cullen was the general contractor on a public renovation project. A subcontractor, EMI, hired its own subcontractors, including UCI. JP Cullen gave UCI work orders, and UCI passed those orders on to its employee, Walter Love. Love had a fight with another subcontractor’s employee. Both participants are African-American. JP Cullen’s superintendent banned both of them from the site. For Love, that meant he no longer had work to perform, because UCI had no other contracts to which he could be assigned.

Love sued JP Cullen for race discrimination. The allegations included a noose and routine use of the N-word on the site, but on appeal, the only issue was whether JP Cullen, in addition to UCI, was Love’s “employer.” The 7th Circuit applied a five-factor test that it considers a more “structured” form of the economic realities test. Here, the reality was that the general contractor was not one of Love’s employers. It didn’t control Love’s work, didn’t provide training other than safety meetings, didn’t provide him equipment, didn’t pay him or his benefits, and was not going to be his employer following completion of the renovation project. Where Love could meet none of the five factors in the test, the court easily concluded the general contractor was not Love’ employer. Love v. JP Cullen & Sons, Inc., No. 13-3291 (7th Cir. March 9, 2015)

EEOC Benchslaps Just Keep Coming 2014-08-28T13:46:48-06:00

Posted on August 28, 2014

By John Alan Doran

Yesterday we reported on an entertaining “man bites dog” case initiated by a former EEOC Phoenix Regional Office investigator who sued the EEOC for race discrimination, retaliation, and violation of her civil rights. “Another Approaching Benchslap for EEOC.” Well, today we report on her co-worker, Quarracy Smith, who is a current EEOC investigator, also in the Phoenix Regional Office, and also suing the EEOC for race discrimination and retaliation, as well as racial harassment. Smith v. Barrien et. al., No. 2:14-cv-01616-NVW (D. Az., filed July 17, 2014). Consider this an “another man bites the same dog” story. Mr. Smith claims that he has been working as an EEOC investigator since June 2009. He alleges that from June 2010 forward, he has been subjected to race discrimination and harassment in several respects, which include being held to case dismissal quotas, cell phone rules, promotion standards, disciplinary actions, and much more solely on account of his race. He even goes so far as to allege that the Regional Director stated that he could not do much for the Black employees in the office because he was afraid it would be interpreted as favoritism. Mr. Smith also alleges that the EEOC failed to adequately investigate his claims of discrimination and hostile working environment, and requests all sorts of legal and equitable remedies including punitive damages.

In light of the recent VA debacle in Phoenix, one has to wonder what in the world the Feds are doing to keep a watchful eye over their teams in Arizona. More pointedly, one must wonder how a federal agency empowered to eradicate discrimination and retaliation can possibly police our employers when it appears wholly incapable of policing itself. More to come on this case and the case we reported yesterday…..

Another Approaching Benchslap for EEOC? 2014-08-27T10:14:56-06:00

Posted on August 27, 2014

By John Alan Doran

In a positively delightful “man bites dog” story, a former EEOC investigator just filed suit against the EEOC alleging race discrimination, racially hostile work environment, and retaliation in violation of Title VII and the Civil Rights Act. Richardson v. Barrien et al., No. 2:14-cv-01882-MEA (D. Az., filed August 22, 2014). Jae Richardson worked for the EEOC’s Phoenix Regional Office from 1992 to 2014, when she apparently retired. According to the Complaint, Ms. Richardson was promoted to an investigator position early in her career, but received a series of demotions and disciplinary actions throughout her career on account of her race. The Complaint tells a tawdry tale of long-standing racism and even reverse racism at the highest levels of the EEOC Phoenix Regional Office and even the EEOC nationally. It also alleges false statements and document falsification on the part of EEOC investigators. According to the Complaint, “the EEOC’s racial discrimination record is the worst of any Federal Agency…and [it] has itself willfully [sic] violated the Fair Labor Standards Act on a nationwide basis….” The Complaint goes on to note that “the racial makeup of its workforce would set off alarm bells…” and that “the agency is more interested in collecting money than eradicating discrimination in the workplace across this country. EEOC is like the fox guarding the henhouse.”

The complaint provides ample fodder for future cross-examinations of EEOC investigators, and for this we truly thank Ms. Richardson. We promise to keep an eagle eye on this gem so we can immediately report the benchslap if/when it occurs.

See our earlier post on court reaction to the EEOC’s own employment practices.

Cat’s Paws and Other Shadow Puppets 2013-08-09T21:20:42-06:00

Posted on August 9, 2013

By Bill Wright

We’re familiar with cat’s paw theories of liability: a plaintiff might prove he or she has been subjected to discriminatory treatment (even though the decision maker obviously lacked any animus) by showing that a co-worker had a discriminatory animus and caused the plaintiff to get fired. One recent plaintiff took it a step further. In Johnson v. Koppers, Inc., No. 12-2561 (7th Cir. August 8, 2013), the plaintiff asserted that a co-worker got her fired by falsely accusing her of using “a colorful array of racial and gender-based slurs” and of pushing him. According to the plaintiff, it was a “classic case of projection.” The co-worker projected his bias onto her. The court rejected the projection theory: even if the co-worker had made up the story about plaintiff using slurs, this was not evidence that the co-worker himself had racial or gender biases. The plaintiff was speculating about projection. (It probably helped the court that the plaintiff’s discharge was based on a later fight between the plaintiff and the co-worker and the fact that there was an independent witness to the later fight.)

Cat’s paw liability still requires proof that the co-worker acted out of illegal bias, and cat’s paw ”projection” theories are still relegated to Tom & Jerry cartoons absent actual proof of genuine projection.

One Exclusionary Comment Is All It Takes 2013-02-04T21:17:58-07:00

Posted on February 4, 2013

By: Karla E. Sanchez

Title VII applies both to employers and to unions. Unions may not discriminate in making job referrals, for example. In a recent case, the Third Circuit Court of Appeals reversed summary judgment for a union on the strength of just one comment from a union business agent. Butt v. United Brotherhood of Carpenters & Joiners of America, No. 12-1331 (3rd Cir. Jan. 31, 2013) (not precedential).

In this case, five African American women alleged race and sex discrimination. One Plaintiff testified that she asked the Union’s business agent, a white male, about referrals. He responded, “my people are still out of work.” The plaintiff construed the statement to mean that she was not one of his “people” because she was not white nor male. On the strength of this comment, the Court of Appeals vacated the District Court’s grant of summary judgment in favor of the Union.

Be careful what you and your agents say. One comment might result in expensive litigation.

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