This week in racism

If you’re a public figure and you’re caught calling the President “that f—king n-----,” do you:

1. Apologize profusely in a vain effort to save your job, or
2. Say, “I believe I did use the ‘N’ word in reference to the current occupant of the Whitehouse. For this, I do not apologize—he meets and exceeds my criteria for such.”

If you’re Robert Copelamd, the 82-year-old police commissioner of Wolfeboro, New Hampshire, the answer, sadly, is the latter.

According to CNN, the town is powerless to remove Copeland, who is adamant that he will not resign.

So, if you’re an employer, and one of your managers acts akin to Copeland, what do you do? After reading my blog for the past seven years, I hope you know that the only possible answer is to fire Copeland. You cannot have a manager going around spouting off racist nonsense. We lately seen a lot of old, white men spewing racist stuff (see Donald Sterling). Employers must be vigilant in rooting out, and stopping, these attitudes in the workplace, or face the consequences of potentially damaging, and expensive, discrimination lawsuits.

Dont' be that boss: company pays big for use of the n-word

If you’re African-American, your boss (who happens to be the president’s son and part owner) calls you and other African-American employees a “n***er,” and places a handgun on his desk for intimidation whenever meeting with African-American employees, do you have a case for discrimination and harassment? You bet you do.

Those were the facts in Smith v. Superior Production (Ohio Ct. App. 5/8/14) [pdf], in which the trial court had tossed out a $550,000 jury verdict in favor of a laid-off African-American employee working under those conditions.

One issue in the case was the commonness of the use of the n-word. The majority opinion concluded that the use of the n-word, coupled with the brandishing of a handgun, was sufficient to sustain the jury’s verdict:

Reasonable minds can easily conclude that Holstein’s use of the n-word, directly to Smith, while on the production floor, at the same time telling him to go home, was humiliating. The trial court also disregarded the other testimony, including testimony about laying a cocked firearm on the desk when Holstein talked to Smith. Further, the trial court improperly discounted other evidence of a hostile work environment. The trial court argued that racially offensive language was bantered around the plant, but it was not humiliating because it was not directed at Smith most of time. The trial court also argued that Smith was not subject to a hostile work environment even though he was intimidated when Holstein would routinely pull his gun out of a drawer, cock it, and then set it on the desk when meeting with Smith.

The dissent, however, disagreed:

The majority decision also points to management’s common use of “n___” in the workplace as evidence of discriminatory animus. Smith testified that, during the ten-year period between 1998 and 2008, he heard five people—three co-workers, one of Superior’s owners, and Holstein—refer to African Americans as “n___s” in the workplace. Smith, however, failed to testify as to how frequently he heard that racial slur. Given this gap in the evidence, I do not believe that a factfinder could conclude that the use of  “n___” was common. 

How does one reconcile this differing opinions? You don’t. Instead, you understand that while differing minds could come to different decisions, the behavior exhibited in this case is abhorrent and has no place in your workplace. Have a strong anti-discrimination and anti-harassment policy. Train your employees on what it means. Take a zero-tolerance stance on this type of behavior. That way, you should never have to worry about what a judge or jury will do with these types of facts.

Your corporate message against discrimination must start at the top

By now, you’ve likely read about Donald Sterling, the now-banned owner of the Los Angeles Clippers, caught on tape by his ex-girlfriend making racist comments.

This story teaches an important lesson about corporate culture and your workplace. If your company has a culture of condoning this type of behavior, no policy, and no amount of training, will render it safe. You need to decide what kind of company you want to be, and set the tone all the time. Then, when any employee (including the CEO or owner) is accused of racism, sexism, or any other illegal -ism, employees will have confidence that your company will arrest the offending behavior quickly and severely.

Kudos to the NBA for taking swift action against Sterling. Your business likely does not require the same type of pubic response made by the NBA. However, the NBA’s swift and decisive action tells all of its employees that racism has no place in its league.

What does an appropriate corporate response to this level of intolerance look like? Here are some of the comments of NBA Commissioner Adam Silver (via USA Today):

The views expressed by Mr. Sterling are deeply offensive and harmful; that they came from an NBA owner only heightens the damage and my personal outrage.

Sentiments of this kind are contrary to the principles of inclusion and respect that form the foundation of our diverse, multicultural and multiethnic league.

I am personally distraught that the views expressed by Mr. Sterling came from within an institution that has historically taken such a leadership role in matters of race relations and caused current and former players, coaches, fans and partners of the NBA to question their very association with the league.

To them, and pioneers of the game like Earl Lloyd, Chuck Cooper, Sweetwater Clifton, the great Bill Russell, and particularly Magic Johnson, I apologize.… This has been a painful moment for all members of the NBA family. I appreciate the support and understanding of our players during this process, and I am particularly grateful for the leadership shown by Coach Doc Rivers, Union President Chris Paul and Mayor Kevin Johnson of Sacramento, who has been acting as the players’ representative in this matter.

We stand together in condemning Mr. Sterling’s views. They simply have no place in the NBA.

6th Circuit sends strong signal to EEOC in affirming dismissal of systemic lawsuit

Last January, a Cleveland federal-court judge dismissed a race discrimination lawsuit brought by the EEOC against Kaplan Higher Learning. In that case, the EEOC challenged Kaplan’s use of credit reports in its hiring process as having a systemic disparate impact based on race. To support its claim, the agency retained an expert witness to rate (i.e, guess) the unknown races of various job applicants based on how they appeared in DMV records. The district court excluded the expert, concluding that his “opinion” was nothing more than guesswork that resulted in inherently unreliable data. With no expert testimony to support its claim, the court dismissed the EEOC’s lawsuit.

Yesterday, in a terse opinion issued a mere 20 days after oral argument, the 6th Circuit affirmed the district court’s dismissal. Here is the entirety of the 6th Circuit’s legal analysis:

We need not belabor the issue further. The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself. The district court did not abuse its discretion in excluding Murphy’s testimony.

This case sends a strong signal to the EEOC that it cannot use junk science to further its agenda of eliminating systemic discrimination. What is so striking of the opinion is the brevity of the Court’s four-line analysis. That the 6th Circuit could make quick work of such an important issue speaks volumes of how little it thought of the EEOC’s litigation strategy.

Yet, the Kaplan case is less about whether credit histories disparately impact African Americans than it is about how the EEOC chose to prove its case. Kaplan did not win this case so much as the EEOC lost it by using junk science to support its claim. Employers should see this case for what it is — a stinging rebuke of the EEOC’s litigation tactics — and nothing more. Employers should not take this case as a license to deploy screening practices that might disparately impact applicants based on race, lest you end up the receiving end of the next EEOC lawsuit.

Social-cultural discrimination does not equal race discrimination

Does a policy that prohibits employees from wearing dreadlocks discriminate against African-Americans? According to one federal court, in EEOC v. Catastrophe Management Solutions [pdf], the answer is no.

CMS maintained the following policy, which it interpreted to prohibit employees from wearing dreadlocks:

All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines … hairstyles should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.

The EEOC claimed race discrimination following CMS’s rescission of a job offer after a job applicant refused to cut her dreadlocks. The court, however, disagreed, dismissing the EEOC’s lawsuit. The court made a key distinction between immutable, protected characteristics (such as race) and mutable, unprotected characteristics (such as hairstyle):

It has long been settled that employers’ grooming policies are outside the purview of Title VII…. The EEOC asserts that the policy itself was discriminatory because it was interpreted to prohibit dreadlocks, which is a hairstyle. Title VII prohibits discrimination on the basis of immutable characteristics, such as race, sex, color, or national origin. A hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic….

The court also refused to take the EEOC’s bait to equate culture to race:

According to the EEOC, the definition of race should encompass both physical and cultural characteristics, even when those cultural characteristics are not unique to a particular group. But as the defendant points out, to define race by non-unique cultural characteristics could lead to absurd results. For instance, a policy prohibiting dreadlocks would not apply to African Americans but would apply to whites. Moreover, culture and race are two distinct concepts….

Title VII does not protect against discrimination based on traits, even a trait that has a socio-cultural racial significance.

I’ve discussed dreadlock discrimination before, but in the context of religious discrimination. In this context, the court got this case 100% correct. Dreadlocks are not a “black” thing. Heck, if you saw any of the photos of 2011’s Occupy Wall Street movement, I can guarantee that you saw lots of photos of white folks with dreadlocks. Nevertheless, this case serves a good reminder that grooming policies remain high on the EEOC’s radar, even if they raise much more of an issue for national origin and religion than race.

Mind your internal emails to avoid discrimination issues

Shazor v. Professional Transit Mgmt., Inc. (6th Cir. 2/19/14), interests me for two reasons. First, it discusses and applies a “sex-plus” theory of discrimination to save a plaintiff’s race discrimination and sex discrimination claims from the summary-judgment scrap heap. “Sex-plus” recognizes that race and sex are not mutually exclusive, and protects African-American woman as a class of their own. I commend Shazor to your reading list for its interesting narrative on this issue.

I want to discuss, however, the other interesting aspect of Shazor—the evidence the plaintiff used to avoid summary judgment. She submitted various emails between two corporate executives, in which they unflatteringly referred to her as a “prima donna,” “disloyal, disrespectful,” and a “hellava bitch.” Shazor successfully argued that these emails were code for “angry black woman” or “uppity black woman.” The court used these emails as prima-facie evidence of discrimination in support of her “sex-plus” claim.

Emails is a powerful communication tool. It’s also very permanent. I’ve been saying this about social media for years, but perhaps it’s time to remind employers that communication is communication, no matter how it’s transmitted. If you don’t want something to appear on the front page of the newspaper, or to be read in front of a judge or jury, don’t put it in writing. Don’t email it, don’t text it, don’t Facebook it, and don’t tweet it.

“I have a solution,” you say. “What about apps like Confide, which erases a text message as soon as the recipient reads it.”

While these apps seem like a perfect way to communicate under the radar, their use for business purposes gives me great pause. The intent of this class of apps is to delete communications. I could very easily see a court, confronted with evidence that people have this app on their iPhones and use it for business communications, have willfully destroyed evidence. Spoliation and evidence destruction discovery sanctions would result. For this reason, I believe that company mobile-device policies should police the use of apps like Confide, Snapchat, and their message erasing ilk. And, while your reviewing your policies, mix in some training for your employees about the responsible use of electronic communications.

You can’t always get what you want … but even when you do it’s an “adverse employment action”

Suppose an employee applies for a transfer to an open position. The company decides to hire an external candidate and passes on transferring the employee. Yet, when the same position again becomes vacant nine months later, the company involuntarily transfers that same employee into the position. Is the transfer to the very same position (with the same pay, benefits, prestige, and responsibility), for which, just nine months earlier, that employee had applied, an “adverse employment action” sufficient to support a claim of discrimination?

Amazingly, in Deleon v. City of Kalamazoo (1/14/14) [pdf], the 6th Circuit answered, “Yes.”

[A]n employee’s transfer may constitute a materially adverse employment action, even in the absence of a demotion or pay decrease, so long as the particular circumstances present give rise to some level of objective intolerability…. [W]e conclude that Deleon has met his threshold at the summary judgment stage…. Deleon provided evidence that he was exposed to toxic and hazardous diesel fumes on a daily basis. He testified further that he had to wipe soot out of his office on a weekly basis. As a result, Deleon claims that he contracted bronchitis, had frequent sinus headaches, and would occasionally blow black soot out of his nostrils….

We emphasize that the key focus of the inquiry should not be whether the lateral transfer was requested or not requested, or whether the aggrieved plaintiff must ex tempore voice dissatisfaction, but whether the “conditions of the transfer” would have been “objectively intolerable to a reasonable person.”

There is so much wrong with this opinion that I don’t know where to start. Perhaps the best place is Judge Sutton’s scathing, common-sense dissent, which ends thusly (as will today’s post):

Whatever the correct interpretation of the employment retaliation laws may be, they surely stop at this line: imposing liability on employers whether they grant or deny an employee’s request for a transfer…. An interpretation of the retaliation laws that subjects employers to liability coming and going—whether after granting employee requests or denying them—will do more to breed confusion about the law than to advance the goals of a fair and respectful workplace. Even after plumbing the depths of logic, experience, case law and common sense, I must return to this surface point: When an employee voluntarily applies for, and obtains, a job transfer, his employer has not subjected him to an adverse employment action.

Don’t be a jughead by thinking that white men aren’t a protected class

A group of male employees of Archie Comics filed a gender discrimination lawsuit against their employer. They allege, among other things, that Nancy Silberkleit, the company’s co-CEO, constantly referred to them by their male anatomy instead of by name.

In her defense, Silberkleit claims that she cannot be liable because “white men” are not a class protected from discrimination.

Rest assured, that defense is a loser. Title VII does not just protect minorities from discrimination. It protects all employees from discrimination. Thus, a male employee enjoys the same rights as a female employee to a workplace free from discrimination, just as a white employee has the same rights a black employee. An employer cannot treat men differently than women, or whites differently than blacks, and the disparately affected and marginalized class (whether or not a historical minority) has a claim.

My advice to Nancy Silberkleit? Abandon your defense, get out your checkbook, and take some EEO training.

[Hat tip: BuzzFeed]

Riffing on the right way to do workforce reductions

Anthony Rachells was a top performer at Cingular Wireless. As a National Retail Account Executive in Cingular’s Cleveland region, he received numerous sales awards, consistently exceeded company sales goals by the greatest margin of any of his co-workers, and, in 2003 earned the top performance review among his peers. Yet, when AT&T acquired Cingular in 2004, and eliminated five of the nine employees in Rachells’s position. Rachells received the lowest 2004 performance review score of any candidate, ranked seventh in the overall selection process, and was terminated.

Rachells—who was the only African-American National Retail Account Executive—sued, claiming that his manager (who other testified had a history of discriminating against minorities) included him in the workforce reduction because of his race.

Last week, in Rachells v. Cingular Wireless Employee Services [pdf], the 6th Circuit concluded that it should be up to a jury to determine whether the decision-making manager singled out Rachells because of his race.

Here, among the Cingular candidates, Rachells was the only person of color and the only individual discharged in the RIF. Given this small sample size of the Cingular candidates, however, this is not sufficient to conclude that Cingular’s actions were racially motivated…. The district court erred in dismissing two other crucial categories of evidence tending to show race-based discrimination: evidence of Rachells’ superior qualifications and evidence of a discriminatory atmosphere at Cingular….

Here are three factors to think about when using subjective criteria (such as rankings) when deciding on who to include in a RIF:

1. Comparability. What do your workforce demographics look like before and after the RIF, company wide, department by department, and job function by job function? If it looks like your RIF affected women, minorities, or older workers more than their comparators, it will become harder to justify the legitimacy of the subjective criteria. In this case, Cingular’s RIF failed the smell test by including the only African-American account executive.

2. Consistency. Do you always use subjective criteria as part of your decision-making? If not, it will look like you added a subjective component to this RIF for a reason (to single out someone or some group). If nothing else, you will have to explain why you deviated from the norm. In this case, it was not a stretch for the court to conclude that the manager rigged the ranking to single out Rachells.

3. Honesty. Was everyone honest in their subjective evaluations? The quickest way to buy yourself a jury trial is for the plaintiff to uncover dishonesty or other shenanigans in the decision-making process. If you are going to have a subjective component to any RIF, make sure the evaluations pass muster. How do they compare to past performance reviews? Have the employees ever been counseled, disciplined, or put on a performance plan? Do the objective criteria (sales numbers, for example) contradict the subjective evaluation? In this case, Cingular’s RIF failed because the objective criteria (sales figures, awards, and prior performance reviews) did not match the subjective ranking prepared solely for purposes of the RIF.

RIFs, done correctly, provide employers wide protections from allegations of discrimination. Done poorly, however, RIFs open employer to widespread claims of discrimination that can prove more difficult to defend than the savings the employer hoped to realize from the layoffs.

751,942 (and a half) marks against the EEOC in background check litigation

It’s no secret that criminal background checks rank highly on the EEOC’s hit list. The EEOC has taken the position that a policy that per se eliminates someone with a criminal history from consideration for employment violates Title VII as having a disparate impact based on race. And, the EEOC is aggressively litigating so that courts will bless its non-binding enforcement guidance on this topic and make it law.

What happens, however, when the EEOC litigates this point despite proof that an employer does not have a policy of rejecting felony applicants? A court of appeals affirms a three-quarters of a million dollar attorneys’ fees judgment against the agency and in favor of the employer against whom it unreasonably litigated. That is exactly what the 6th Circuit did yesterday in EEOC v. Peoplemark, Inc. [pdf].

The district court did not abuse its discretion when it found that the Commission could not prove its case as pleaded…. As is required, the Commission pleaded a specific employment practice—a companywide policy of denying employment opportunities to felons. That policy did not exist, and the claim the Commission pleaded could not be proved….

We are not focused on the Commission’s theory of the case, but rather, whether the claim was frivolous, unreasonable, or groundless, or whether the Commission continued to litigate after it clearly became so. As the Commission admits in its brief, it “pled a blanket policy.” The only employment practice it pleaded—and as a direct result, the only claim it pleaded—could not be proved.

We are currently ensnarled in a ugly budget fight that has shuttered our federal government. Perhaps one solution to this crisis is for Congress to engage in some simple oversight over the agencies that enforce our various laws, including the EEOC. $751,942.48 in taxpayer money is a costly investment to chase a fools’ errand.

Federal court slams the door on EEOC’s criminal background check lawsuit

In EEOC v. Freeman (D. Md. 8/9/13) [pdf], the U.S. District Court for the District of Maryland dismissed a race discrimination lawsuit filed by the EEOC. Consistent with its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII, the EEOC alleged that Freeman’s criminal background checks on all job applicants violated Title VII by disparately impacting African-American job seekers.

In dismissing the lawsuit, the Court focused on the factual failings of the EEOC’s statistical expert. Eric Meyer’s Employer Handbook Blog has the details of the Court’s opinion.

The opinion also provides the most scathing indictment to date of the EEOC’s position on the use of criminal background checks by employers. Despite its length, it’s worth reprinting in its entirety.

For many employers, conducting a criminal history or credit record background check on a potential employee is a rational and legitimate component of a reasonable hiring process. The reasons for conducting such checks are obvious. Employers have a clear incentive to avoid hiring employees who have a proven tendency to defraud or steal from their employers, engage in workplace violence, or who otherwise appear to be untrustworthy and unreliable….

The present case is only one of a series of actions recently brought by the EEOC against employers who rely on criminal background and/or credit history checks in making hiring decisions. For example, in two recent complaints filed against discount retailer Dollar General Corp. and car manufacturer BMW, the EEOC claimed that those employers improperly used criminal background checks to bar potential employees, resulting in a disparate impact on African-American applicants….

Indeed, the higher incarceration rate [of African-Americans than Caucasians] might cause one to fear that any use of criminal history information would be in violation of Title VII. However, this is simply not the case. Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States. As Freeman points out, even the EEOC conducts criminal background investigations as a condition of employment for all employees, and conducts credit background checks on approximately 90 percent of its positions….

By bringing actions of this nature, the EEOC has placed many employers in the “Hobson’s choice” of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers. Something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim based upon criminal history and credit checks. To require less, would be to condemn the use of common sense, and this is simply not what the discrimination laws of this country require.

This case is an important first step towards a reasoned and rational understanding of the role of criminal background checks for employers. The Freeman case, however, will not be the final word. District courts nationwide will face this issue and, depending on the judge hearing the case, will agree or disagree with the EEOC’s hard-line position. It will then be up to the appellate courts, and, hopefully, the Supreme Court, to have the final say.

In the meantime, employers need to understand that criminal background checks are the EEOC’s hit list. Regardless of how this issue ultimately plays out, using a conviction record as a disqualifying factor for employment without engaging in the individualized inquiry required by the EEOC’s Enforcement Guidance will raise the EEOC’s ire and could subject an employer to an enforcement lawsuit.

I am hopeful that, in the end, common sense will prevail and rescue employers from the Hobson’s choice recognized by the Freeman court. Until then, these practices remain risky. Employers will have to balance the risk of an EEOC enforcement action against the benefit to be gained from the access to and use of criminal conviction records in hiring and employment.

Why Paula Deen loves gay marriage

Lost amid the news of salacious allegations of workplace misconduct, historically bad depositions, a food empire going down in flames, and the meaning of the N-word in 2103 American society is the fact that the employee suing Paula Deen and accusing her of racial harassment is White. 

The fact a White employee is complaining about harassment against African-Americans, in and of itself, does not bar the plaintiff’s harassment claim. As the 6th Circuit held in Barrett v. Whirlpool Corp., a White employee can bring a lawsuit asserting racial harassment against an African-American co-worker, but only if the employee claiming the harassment was also discriminated against because of his or her race.  In other words, it’s not enough for the plaintiff in the Paula Deen case to show that Ms. Deen created a racially hostile work environment in her restaurant. She must also prove that Ms. Deen discriminated against her because of her race (White).

Last week, Ms. Deen’s lawyers supplemented an earlier-filed motion seeking the dismissal of, among other claims, the racial harassment claim. They claim that the plaintiff cannot seek the protections of Title VII because she is not claiming that she was discriminated against, but merely that a racially hostile work environment existed targeting other races.

In support of this argument, Ms. Deen cites to Hollingsworth v. Perry, the recent U.S. Supreme Court case that dismissed, on the basis of a lack of standing, the challenge to the illegality of California’s gay marriage ban. Ms. Deen claims that per Hollingsworth, the plaintiff lacks standing to claim racial harassment. Per Hollingsworth:

Article III of the Constitution confines the judicial power of federal courts to deciding actual “Cases” or “Controversies.” One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so. This requires the litigant to prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision…. In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm. “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s requirements.”

In other words, Paula Deen argues that a White employee lacks standing to claim racial harassment against her African-American co-workers because she is not seeking a remedy for a harm personally against her.

Regardless of how the court decides this issue, employers should not use the standing issue as carte blanche to ignore certain harassment complaints. When an employer handles a harassment complaint, the race, gender, religion, national origin, etc. of the employee complaining should not matter. An employer should still investigate and take prompt and appropriate remedial measures to ensure that any harassment that occurred ceases.

The Constitutional argument raised by Paula Deen’s legal team is a nice weapon to have once you are in the thick of litigation, but following my practical tip will help keep you out of litigation in the first place.

Hat tip: Deadline

Paula Deen gave the worst deposition ever

Until now, celebrity chef Paula Deen was best known for high cholesterol and high incidence of diabetes. After this week, however, she might now be better known as the worst deponent ever.

Ms. Deen was recently deposed in a race discrimination case brought by a former employee. Among her testimonial gems, according to Talking Points Memo (which includes a copy of the full deposition transcript):

• Deen describes her dream restaurant: “I remember telling [my employees] about a restaurant that my husband and I had recently visited. And I’m wanting to think it was in Tennessee or North Carolina or somewhere, and it was so impressive. The whole entire wait staff was middle-aged black men, and they had on beautiful white jackets with a black bow tie. I mean, it was really impressive. And I remember saying I would love to have servers like that, I said, but I would be afraid that somebody would misinterpret.”
• Deen details nice ways to use the N-word: “We hear a lot of things in the kitchen, things that they — that black people will say to each other. If we are relaying something that was said, a problem that we’re discussing, that’s not said in a mean way.”
• Deen responds to whether jokes using the N-word are hurtful: “That’s kind of hard. Most — most jokes are about Jewish people, rednecks, black folks. Most jokes target — I don’t know. I didn’t make up the jokes, I don’t know. They usually target, though, a group. Gays or straights, black, redneck, you know, I just don’t know — I just don’t know what to say. I can’t, myself, determine what offends another person.

As for me, I’m saving a copy of the transcript to use with my clients as the example of how not to perform at a deposition.

When state law conflicts with the EEOC on criminal background checks, who wins?

Last year, the EEOC issued its long awaited Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII. While the Guidance was much more fair and balanced than many employer advocates (me included) expected, it does include some head-scratchers for businesses. One such conundrum is how regulated employers are supposed to act when across-the-board criminal background searches are required by state law, as the EEOC takes the position that a blanket requirement violates Title VII.

Per the EEOC:

States and local jurisdictions also have laws and/or regulations that restrict or prohibit the employment of individuals with records of certain criminal conduct. Unlike federal laws or regulations, however, state and local laws or regulations are preempted by Title VII if they “purport[] to require or permit the doing of any act which would be an unlawful employment practice” under Title VII. Therefore, if an employer’s exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.

How is an employer supposed to handle this conflict? Waldon v. Cincinnati Public Schools, currently pending in the Southern District of Ohio, may provide some future guidance.

That case concerns the application of Ohio H.B. 190, which became law in 2007. That law requires criminal background checks of all current school employees, regardless of whether their duties involve the care, custody, or control of children, and mandates the termination of any employee with a certain number of historical convictions, regardless of the convictions’ age.

Two African-American employees challenge that H.B. 190 has an unlawful disparate impact because of race. Both were terminated based on decades-old convictions. All told, the Cincinnati Public Schools fired 10 employees as a result of background checks conducted pursuant to H.B. 190; nine of the 10 fired were African-American.

It is early in the litigation of the Waldon case. The court denied the employer’s motion to dismiss.

First, it concluded that it was clear that the Plaintiffs pleaded a prima facie case of disparate impact.

Although there appears to be no question that Defendant did not intend to discriminate, intent is irrelevant and the practice that it implemented allegedly had a greater impact on African-Americans than others.

The existence of statistically significant disparate impact, however, if only the first step in the analysis. An employer can avoid liability if the challenged practice is justified by business necessity. While the court believed this issue to be “a close call,” it ultimately concluded that it could not make that call on a motion to dismiss:

Obviously the policy as applied to serious recent crimes addressed a level of risk the Defendant was justified in managing due to the nature of its employees’ proximity to children. However, in relation to the two Plaintiffs in this case, the policy operated to bar employment when their offenses were remote in time, when Plaintiff Britton’s offense was insubstantial, and when both had demonstrated decades of good performance. These Plaintiffs posed no obvious risk due to their past convictions, but rather, were valuable and respected employees, who merited a second chance.… Under these circumstances, the Court cannot conclude as a matter of law that Defendant’s policy constituted a business necessity.

Talk about a tough position in which to place an employer. Does the employer violate state law or violate Title VII? Ultimately, I think the correct answer should be neither. Shouldn’t the need to follow state law provide the employer’s “business necessity?” If not, employers will be faced in the untenable position of following one law and violating the other.

photo credit: kevin dooley via photopin cc

This post originally appeared on The Legal Workplace Blog.

Customer preference does not protect employers from race discrimination claims

CNN reports that a Flint, Michigan, nurse is suing her hospitalbecause it kowtowed to a man’s request that no African-American employees care for his baby. The lawsuit [pdf] outlines her key allegations:

     11. The father told the Charge Nurse that he did not want any African Americans taking care of his baby. While telling the Charge Nurse, he pulled up his sleeve and showed some type of tattoo which was believed to be a swastika of some kind.

     12. After the father made the discriminatory request to not allow African Americans to take care of his baby, instead of flatly denying the request, the Charge Nurse called the Nurse Manager, Defendant Osika.

     13. Defendant Osika told the Charge Nurse, Herholz, to re-assign the baby to another nurse and to advise Plaintiff that Defendant Osika, would speak to her supervisor and take care of it the next day.

     14. Plaintiff was re-assigned on or about October 31, 2012 because she is African American….

     19. When Plaintiff reported to her work, she learned that during that day there was a note prominently posted on the assignment clipboard that read as follows: “NO AFRICAN AMERICAN NURSE TO TAKE CARE OF BABY.” Plaintiff was shown a picture of the note.

Let’s make this as clear as possible. Adhering to the request of a customer is not a defense to a race discrimination claim. As one court succinctly stated : “It is now widely accepted that a company’s desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently based on race.” (Note that the same might not hold true for a customer preference based on gender, because employers can claim a bona fide occupational qualification as a defense to a sex discrimination claim).

If you find yourself in a position of having to face down a customer making such a request, take a stand. Tell the customer, “We don’t treat our employees like that, and if you can’t deal, we don’t need your business.” Be the better corporate citizen. It’s not just the legal way to act, it’s the moral way to act.

But he looked black… Court rebukes EEOC’s use of “race rating” in systemic lawsuit

According to the EEOC’s draft strategic enforcement plan for 2012 – 2016, the agency’s number one enforcement priority is ending systemic discrimination in recruiting and hiring. In EEOC v. Kaplan Higher Learning Edu. Corp. (N.D. Ohio 1/28/13) [pdf], the EEOC challenged Kaplan’s use of credit reports in its hiring process as having a systemic disparate impact based on race. Yesterday, the court dismissed the lawsuit in its entirety, excluding the EEOC’s expert witness and concluding that without that expert, the agency could not prove its case.

To determine the race of a particular applicant considered by Kaplan, the EEOC’s expert witness used “race raters.” It subpoenaed the applicants’ DMV records, and used a panel of five people to determine if the photograph looked  “African-American,” “Asian,” “Hispanic,” “White,” or “Other.” The EEOC’s expert required that four out of the five race raters reach consensus to consider that applicant’s race.

Kaplan challenged that the judgment of these “race raters” was nothing more than guesswork, resulting in inherently unreliable data. In agreeing with Kaplan and dismissing the lawsuit, the court cited at least four different reasons for excluding the EEOC’s expert. It was the last reason, though, that caught my eye:

Plaintiff also presents no evidence that determining race by visual means is generally accepted in the scientific community. In fact, the EEOC itself discourages employers from visually identifying an individual by race and indicates that visual identification is appropriate “only if an employee refuses to self-identify.” … According to the EEOC, it implemented these guidelines not because of the accuracy of visual identification, but to facilitate and respect “individual dignity.” Regardless of the reason supporting the pronouncement, it is clear that the EEOC itself frowns on the very practice it seeks to rely on in this case and offers no evidence that visual means is a method accepted by the scientific community as a means of determining race.

In other words, the agency charged with ending racial stereotypes in the workplace based its entire case on stereotypical way in which different races “look.”

If there’s one thing I hate it’s intellectual dishonesty. Whether it’s the EEOC prosecuting a race discrimination case by using “race spotting,” or a Catholic hospital defending a wrongful death suit by arguing that a fetus is not a person because life begins a birth, not conception, intellectual dishonesty is nothing more than the sum of hypocrisy and laziness. I am grateful that we have federal judges in my home district who are willing to call the EEOC on the carpet for this tactic, and I am hopeful that the 6th Circuit will see things the same way when ruling on the inevitable appeal.

Something different for MLK Day

Today is Martin Luther King Jr. Day, celebrating not only the life of Dr. King, but, more importantly, the lessons of inclusion and respect to be learned from his life and untimely death.

In years past, I’ve provided some words of wisdom for employers from this important day:

• 2012: What Dr. King fought for … and what he didn’t
• 2011: MLK Day calls for reflection about how far race relations have come, and how far we have left to go
• 2008: Some words to ponder on MLK Day

If you’ll indulge me, I thought I’d try something a little bit different to memorialize this day: humor—both in the SFW and NSWF variety—each with something important to say about race relations in our society.

 

Archie Bunker's historical meeting with Sammy Davis Jr. (SFW)

 

Chris Rock asking, "Can white people say nigger?" (NSWF)

And, if humor’s not your thing, I’ll be back to regularly scheduled programming tomorrow with a post answering the age-old disability discrimination question, “How long is too long for a medical leave of absence?”

Criminal background checks remain on the EEOC’s radar

Four months ago, the EEOC issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII. That Guidance prohibits employers from implementing broad-based blanket exclusions on any individuals with an arrest or criminal history. Instead, it provides that the consideration of criminal convictions requires a targeted screen that considers at least the nature of the crime, the time elapsed, and the nature of the job, and then must provide an opportunity for an individualized assessment to determine if the policy as applied is job related and consistent with business necessity.

Last week, the EEOC issued its Draft Strategic Plan for Fiscal Years 2012 – 2016, which provides that the identification, investigation, and litigation of systemic discrimination cases—pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area—is a top strategic priority for the agency.

On Monday, these two issues came together. The Nashville Business Journal [hat tip: employeescreenIQ Blog] reported that the EEOC will likely filing a lawsuit against Dollar General Corp., challenging that its criminal background check policy has a “disparate impact” on black job candidates and employees. Apparently, Dollar General Corp.’s policy “excludes from employment individuals with certain criminal convictions for specified periods.” This lawsuit comes on the heels of a $3.13 million settlement paid earlier this year by Pepsi to settle litigation with the EEOC over hiring policies that excluded anyone who had been arrested pending prosecution.

Needless to say, the EEOC continues to take a long, hard look at hiring practices—such as the use of arrest and conviction records—because of their potential adverse impact against African Americans and Hispanics. If you are considering using arrest or conviction records to aid in your hiring decisions, do not do so without a reason connecting the offense to the job, and without the input of employment counsel versed on these issues.

[photo credit: brizzle born and bred via photo pin cc]

The “cat’s paw” strikes back

In Staub v. Proctor Hosp., the Supreme Court passed judgment on the “cat’s paw” theory of liability in discrimination cases—an employer’s liability for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence over the ultimate decision maker. The Staub Court concluded that an employer can be liable for the discriminatory animus of a non-decision making supervisor who intends to cause, and does proximately cause, an adverse employment action.

In Chattman v. Toho Tenax Am. (6th Cir. 7/13/12) [pdf], the 6th Circuit applied Staub to reverse summary judgment in a race discrimination case. Chattman alleged that his employer’s HR director, Tullock, who recommended his termination for horseplay and fabricated that other supervisors supported the decision, was racially biased.

In support of this allegation of race-based animus, Chattman pointed to three separate incidents:

1. Tullock told a “joke” that O.J. Simpson was innocent and that Nicole Brown was killed by their son because O.J. Simpson responded to a question from his son by answering “go axe your mother.”
2. Tullock responded to another employee’s complaint that her son had gotten into trouble at school for fighting by saying “you know what my grandmother always says about boys scuffling? That’s how the nigger graveyard got full.”
3. Tullock commented about then-Presidential candidate Barack Obama by saying “well you better look close at Obama’s running mate because Americans won’t allow a nigger president.”

Even though Tullock was not the decision maker, the court concluded that a jury question existed under the cat’s paw theory:

Chattman has shown that a genuine issue of material fact exists regarding whether Tullock intended that Chattman be disciplined…. There can be little doubt that Tullock desired Chattman’s termination when he made his recommendation and fabricated the agreement of the other supervisors….

Chattman alleges that Tullock knew that white employees engaged in horseplay but never reported any of those incidents to upper management, instead reporting the only incident on record of a black employee engaging in horseplay.

Tullock was the Human Resources manager, and he actively inserted himself in the decisionmaking process. He both misinformed and selectively informed … about the incident. A reasonable factfinder could find Tullock’s actions were a proximate cause of the adverse decisions.

When the Supreme Court decided Staub last year, I cautioned that it upped the ante for employers in discrimination cases:

The Court’s holding hinges on ideals such as “intent” and “proximate cause,” which are almost always fact-based inquiries. Because it is very difficult for an employer to win summary judgment on these issues, the Court has turned nearly every “cat’s paw” case into a jury case—an expensive proposition for employers.

Chattman does nothing to dissuade me of my earlier opinion.

What is the practical takeaway for employers? You better know who you have managing and supervising your employees. Companies do not make personnel decisions in a vacuum. Executives often rely on the front-line managers and supervisors for advice on who and when to discipline or fire. Yet, under Staub, businesses are on the hook for the discriminatory animus of these managers and supervisors, even if they have nothing to do with the ultimate decision. You never want a bigot managing your employees. The cat’s paw, however, provides employers added incentive to purge them from your managerial ranks.

The EEOC and racial harassment: calling a spade a s---e

The EEOC has published a website detailing 42 racial harassment cases it has litigated over the past three years. The purpose of the website, I think, is to bring awareness to the agency’s efforts to combat this insidious form of discrimination. Sexual harassment cases often get the headlines, but racial harassment is just as damaging, if not more so, to its victims. By raising awareness of the fact that racial harassment is just as illegal as its more well-known cousin, the EEOC can increase the number of charges filed, helping to bring an end to this awful antebellum remnant.

The EEOC’s micro-site discusses racist workplace practices such as nooses, racially offensive comments such as “coon,” “gorilla,” and “porch monkey,” and jokes, cartoons and images that denigrate African-Americans.

What I find curious, though, is that while the agency rightfully has no problem recounting any of these allegations, it apparently has a huge problem republishing the word “nigger.” While several of the reported cases allege the use of that word, the word itself does not appear anywhere in the EEOC’s microsite. Instead, the agency uses shorthand such as “n----r” or “N-word.” Of course, we all know what these abbreviations mean. When reading, no one says “n-hyphen-hyphen-hyphen-hyphen-r” in their heads; you repeat the word, unabbreviated, in all of its ugliness.

Employment law can be dirty, and no cases are dirtier than harassment cases. Sexual harassment cases can involve words such as “bitch” and “cunt.” Sexual orientation harassment cases can involve words such as “fag.” And, racial harassment cases can involve words like “nigger.” Repeating the words in the context of the litigation neither facilitates nor perpetrates their hatred. In fact, the converse is true. Exposing the words for what they are is the most effective means to eliminate them from our workplaces. No problem was ever solved by sweeping it under the rug, and the EEOC’s politically-correct blinders are not helping rid America’s workplaces of this hateful word.