Wednesday, May 21, 2008

Interracial Association Discrimination found unlawful

Associational discrimination has become a hot employment law topic. The ADA expressly authorizes claims based on one's association to a person with a disability. Earlier this year, the 6th Circuit recognized an associational retaliation claim based on one employee's close relation to another employee who engaged in protected activity. Now, the 2nd Circuit has joined the 6th Circuit in permitting an associational discrimination claim based on the plaintiff's interracial relationship.

In Tetro v. Elliott Popham Pontiac, the 6th Circuit permitted an employee to proceed with a Title VII race discrimination claim based on his biracial child:

A white employee who is discharged because his child is biracial is discriminated against on the basis of his race, even though the root animus for the discrimination is a prejudice against the biracial child. ... If he had been African-American, presumably the dealership would not have discriminated because his daughter would also have been African-American. Or, if his daughter had been Caucasian, the dealership would not have discriminated because Tetro himself is Caucasian. So the essence of the alleged discrimination in the present case is the contrast in races between Tetro and his daughter. This means that the dealership has been charged with reacting adversely to Tetro because of Tetro's race in relation to the race of his daughter. The net effect is that the dealership has allegedly discriminated against Tetro because of his race.

In Holcomb v. Iona College, the 2nd Circuit allowed a white assistant basketball coach to claim that he was fired because he was married to an African-American woman:

[W]here an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee's own race.

Unlike associational retaliation claims, this type of associational discrimination claim makes sense under the statute. The adverse action is being taken "because of" the employee's race. The genesis of the discrimination is the fact that the employee is a different race than his spouse, which is "because of" his race.

The bottom line for employers - the race of your employees' spouses and children is none of your business. Supervisors and managers should not go out of their way to inquire about it. Diversity training should incorporate a component making employees aware that this type of discrimination is unlawful and will not be tolerated.