Atlanta Employment Lawyer Blog

Hiring requirements – such as English only rules, passing a test or living in a certain area- may be considered racial discrimination depending on the circumstances. In a recent case, the 3rd Circuit Court of Appeals determined that a Regional Fire and Rescue squad that had a rule stating that only residents could be hired as firefighters was racially discriminatory. Although the rule on its face was not discriminatory, when put it place it had a disparate impact on African American applicants.

In NAACP v. North Hudson Reg’l Fire & Rescue the fire department had a rule that only residents of North Hudson could be hired as firefighters. The NAACP challenged this rule, arguing that the impact of the residency requirement was to effectively exclude African Americans. The population of North Hudson is 69.6% Hispanic, 22.9% non-Hispanic and 3.4% African American. However, the makeup of the firefighters was disproportionate to the population with 240 white non-Hispanics, 58 Hispanics and only 2 African Americans. If the labor market were to include the tri-county region, rather than just the limited area, significantly more African Americans would be eligible and qualified for employment.

Under Title VII, practices that have the unintentional effect of discriminating based on race are prohibited. Here, using a residents-only caused a disparate impact and North Hudson failed to take any steps to remedy the adverse effects. Further, no business necessity existed to maintain the residency requirement. As a result, the court determined that the NAACP could maintain its action for race discrimination against North Hudson Fire & Rescue.

Continue reading "Residents Only Requirements May Constitute Race Discrimination – NAACP v. North Hudson Reg’l Fire & Rescue " »

In a recent 11th Circuit Court of Appeals opinion, Mitten v. Lockheed – Martin Aeronautics, the Appellate Court determined that an employee may bring a claim for relief where sufficient circumstantial evidence exists of racial discrimination. It is not necessary to show that another person in the same job position was treated more favorably in order to have a triable claim.

Here, a white male – Anthony Mitten, a supervisor at Lockheed-Martin Aeronautics -claimed that his employer discriminated against him on account of his race by firing him after receiving and then forwarding a racially insensitive joke email. Under a “zero-tolerance” policy in place at Lockheed-Martin, supervisors were required to report acts of harassment, which then would be subject to a Human Resource’s investigation. The HR department would determine the appropriate discipline, up to and including termination. After learning about Mitten’s action in forwarding the email rather than immediately reporting it, the HR department started an investigation into Mitten’s conduct and subsequently fired him. Mitten later learned that two black employees had recently transmitted racist emails targeting whites and received more lenient treatment under the same zero tolerance policy. Mitten then sued claiming reverse race discrimination.

Unfortunately, racism still exists in the workplace. Title VII prohibits employers from discriminating against their employees “because of” their race or color. The law not only applies to blacks and other racial minorities, but individuals of all races and colors. When a non-minority employee brings a claim, it is known as “reverse discrimination.”

The District Court for the Northern District of Georgia rejected Mitten’s claim of discrimination reasoning that because Mitten did not point out preferentially treated blacks in the same job position as him – a supervisory role – he lacked sufficient evidence of discrimination to continue his case.

The 11 Circuit Appellate Court disagreed, stating “[D]ifferences in job ranks…are not, in and of themselves dispositive as to whether the two individuals may be compare for the purposes of evaluating a discrimination claim.” Significantly, the Appellate Court also noted “the plaintiff will always survive summary judgment if he presents circumstantial evidence that creates a triable issue concerning the employer’s discriminatory intent [emphasis added].” If a jury could infer intentional intent based on the circumstantial evidence, then the case may continue.

Continue reading "Buckley & Klein Victorious In Reverse Race Discrimination Case. 11th Circuit Court of Appeals Determines Employees May Always Bring A Claim for Discrimination Where Circumstantial Evidence Of Discriminatory Intent Exists" »

A group of black firefighters has won their battle for relief in a long-standing dispute over the discriminatory impact of a screening test. The City of Chicago’s 1995 firefighter exam ranked applicants as highly qualified, qualified, or not qualified based on the results of the test. When it was time to hire applicants, only those people ranked as highly qualified were selected. The impact of the test discriminated against qualified black applicants.

Employment discrimination, including race discrimination, may be direct – such as refusing to hire someone because of their race - or it can be more subtle – such as screening practices that reduce minority applicants and employees such as job and intelligence tests, dress codes and English-only rules.

Here, a class action lawsuit was filed on behalf of the qualified black applicants alleging that the test had a discriminatory impact. The city conceded that the cut-off had a racially discriminatory impact, and the Supreme Court found that no legitimate “business necessity” required the cut-off. As a result, each time the test was used to determine which applicant’s to hire, a new race discrimination claim was created.

Continue reading "Chicago Black Firefighters Successful In Challenging Racially Discriminatory Test" »

A janitorial company that provides services to O’hare International Airport has agreed to pay $3 million to rejected black applicants. At issue – a June 2009 lawsuit asserting race discrimination as a result of the company’s failure to hire or recruit black applicants for janitorial jobs.

Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees on the basis of race, color, national origin, sex, religion, disability or age. This means that an employer cannot take any form of adverse or negative action against you if you belong to one of these protected categories. Adverse actions include not only termination, but any actions that negatively impact an employee or potential employee such as refusals to hire, negative references, and placement in undesirable shifts or job locations.

Here, an African-American job applicant was denied even the opportunity to interview for a position as a janitor. At least 550 other African-Americans joined the lawsuit, with far greater numbers having been denied the opportunity to interview. Based on racially discriminatory policies at Scrub, Inc., the EEOC sought injunctive relief against the janitorial company in order to “stamp out discrimination.”

As a result of the action, the company will be required to consider claimants for entry level jobs and actively recruit African American job applicants through print, radio spots, and job fares.

Continue reading "Contractor Agrees To Pay $3 Million in EEOC Race Bias Decree" »

Despite significant advances, race discrimination continues to be a problem at many workplaces. A recent case has determined that an employee who suffered verbal assaults such as being called the “n word” by his boss can proceed with his claim for a hostile work environment.

In Taylor v. Bob-Rohr-Indy Motors, an African American car salesman – Johnny Taylor - endured pushing and disrespectful comments from his sales manager, James Mueller. Here, a series of incidents occurred over several weeks including Mueller using a disrespectful tone when asking for assistance, telling Taylor he was “not a man of his word” when he failed to bring in food for a salespersons’ lunch, and punching Taylor in the shoulder and stated that “you think we owe y’all people something.”

Despite the offensive nature of these comments and actions, Taylor failed to submit a written report to his supervisor. Taylor subsequently went to the EEOC to find out about filing charges based on religion and disability, but not race.

Mueller continued to taunt Taylor, with Taylor becoming angry and threatening Mueller after calling he called him the “n word” and said, don’t you be standing in front of me.” After being sent home for the weekend, Taylor filed an EEOC claim based on race harassment.

The court determined that the alleged actions constituted sufficient evidence to survive summary judgment, and allowed Taylor’s claim to proceed. The court reasoned that despite conflicting testimony, a genuine issue of fact existed whether Taylor was subjected to derogatory comments and racial slurs. Further, no evidence suggested that Taylor welcomed or participated in the use of the racially charged words. As such, a reasonable jury could find that the language was unwelcome and based on his race.

Continue reading "Employee May Proceed With Race Discrimination Case" »

The House Financial Services Institution and Consumer Credit Subcommittee recently heard testimony regarding the use of credit checks and whether their use is discriminatory. At issue – whether H.R. 3149 placing more restrictions on the use of credit checks is necessary to restrain discrimination in light of current laws.

Proponents argue that restricting the use of credit checks is needed to eliminate “unfair hiring practices” and would open up more jobs for those Americans who are qualified for jobs, but have bad credit. The Equal Employment for All Act would prohibit the use of consumer credit checks against prospective and current employees for the purpose of making adverse employment decisions, including hiring, promotions, transfers, and terminations.

Many cite the use of credit checks as disproportionately affecting minorities and that making employment decisions based a credit scores creates a discriminatory bias on the basis of race and national origin. Race discrimination often occurs through subtle practices that tend to screen out minority applicants and employees. Proponents of H.R. 3149 assert that using credit checks does just that, ultimately harming those of color.

Rep. Luis V. Gutierrez concludes, “[c]redit reports are simply inappropriate for use in most hiring decisions.”

Continue reading "Is It Discriminatory To Use Credit Checks In Employment Decisions?" »

The U.S. Court of Appeals for the Seventh Circuit has determined that the mayor of Indianapolis and other city officials can be held liable to three white police lieutenants whose constitutional rights to equal protection were violated when they were denied promotions. Black officers who ranked lower on the eligibility list were promoted instead – giving rise to the white officers claims of “reverse discrimination.” The officer’s Title VII claims are still pending.

The city officials claimed qualified immunity based on a 1978 consent decree between the Justice Department and Indianapolis requiring them to take race into account when making promotions. While the consent decree set goals for increasing the percentage of African American police officers in all ranks, the 7th Circuit held that the federal court was correct in finding that it did not “mandate the promotions at issue.”

The 7th Circuit also determined that the federal court correctly denied immunity to the officials. Even though the consent decree set recruitment and hiring goals for black officers, promotions were to be based on relevant standards and criteria, applied without regard to race or color.

The Court of Appeals also reasoned that the city’s provision for race-neutral promotional exams would be undermined if race could be used as a criterion for promotions. As such, the white officers claims under 42 U.S.C. Sec. 1981 and 42 U.S.C. Sec. 1983 were allowed to proceed.

Title VII and other race discrimination laws protect against discrimination based on the color of your skin, even where you are not a racial minority. Both discrimination and “reverse discrimination” cases may arise when an employer takes an adverse employment action against an employee based on race such as a termination, failure to hire, or failure to promote.

Continue reading "Consent Decree Cannot Shield Officials From Reverse Race Bias Claim" »

A recent Seventh Circuit opinion held that honoring a patient’s racist request constituted a violation of a black nursing assistant’s rights under Title VII of the 1964 Civil Rights Act.

In Chaney v. Plainfield Healthcare Ctr., a nursing home patient requested that a black nursing home assistant refrain from providing her care. The nursing home honored this request. In her claim based on race discrimination, the healthcare assistant argued that the daily reminder on the assignment sheet not to enter the patient’s room or provide care, along with co-workers racist’s comments created a “hostile work environment.” A unanimous appeals panel agreed.

Writing for the court, Judge Anne Claire William reasoned that a racial preference policy violates a worker’s right to a non-discriminatory workplace under Title VII. By honoring the patient’s requests, the nursing home created an environment adversely impacting the nursing assistant. The court distinguished this case from those cited by the defense allowing sex-based preferences in health care settings. Where gender based preferences are allowed, often privacy concerns exist – such as dressing and undressing – that do not apply to race.

The court also rejected the nursing home’s argument that it was trying to comply with state and federal regulations regarding the need to honor patients’ wishes regarding health care – holding that Title VII would preempt any state law requiring an employer to institute a race-based work practice and that “Title VII does not …contain a good-faith ‘defense’ that allows an employer to ignore the statute in favor of conflicting state law.”

Finally, the court dismissed the nursing home’s claim that “customer preference” could serve as a defense to claims of discrimination. Cases showing gender based bona fide occupational qualification (BFOQ) exceptions to Title VII for long-term care were not applicable.

Title VII prohibits workplace discrimination against employees on the basis of their race, color, national origin, and religion. Policies favoring a worker’s right to be free from discrimination trump patient or customer requests where those requests create a discriminatory environment.

Continue reading "Honoring A Patient’s Racist Requests Constitutes Discrimination" »

In May a federal jury awarded a Muslim Egyptian-born man over $3.6 million, as the result of severe religious and race discrimination that forced him to resign from his job at the University of Texas Southwestern Medical Center.

In the post-9/11 climate, anti-immigrant sentiment has increased, often taking the form of religious, national origin, or race discrimination. Title VII specifically protects these classes and prohibits your employer from taking adverse action against you because of your race or color, ethnic background, or religious beliefs. If you complain of these types of discrimination or harassment, companies are prohibited from retaliating against you. Often these types of discrimination are intertwined.

In Nassar v. Univ. of Tex. Sw. Med. Ctr., a jury found that the hospital “constructively discharged" Nassar because of his race, national origin and religious preference. The jury also held that the hospital had retaliated against him in violation of Title VII. Specific discriminatory actions included derogatory comments, and failures/delays in promotion. After Nassar was offered a new job, the hospital contacted the new employer and informed it about Nassar’s EEOC complaint, and recommended Nassar not be hired. Based on the UTSW’s actions, Nassar’s employment offer was rescinded.

Unfortunately, in recent years anti-immigrant discrimination in the work place has proliferated. Often discriminatory actions manifest themselves subtly – such as English only rules and dress codes. Discrimination may also occur in how you are allowed to practice your religion.

Continue reading "Jury Finds Medical Center Discriminated Against Muslim Doctor " »

The U.S. Supreme Court has ruled that black firefighters did not miss the deadline to file a cause of action for race discrimination against the City of Chicago, holding that reliance on a discriminatory test administered in the past can constitute a new violation of Title VII.

Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating on the basis of race. Race discrimination often occurs through facially “neutral” practices that have the effect of screening out minority applicants and employees, such as employment tests, appearance and dress codes, English-only rules.

At issue in Lewis v. City of Chicago was a written employment test administered to more than 26,000 firefighter applicants. The City of Chicago stated that everyone who scored above a 65 on the test was qualified, but would only hire those who were “well qualified” – i.e. those individuals who scored an 89 or better.

The firefighters brought a lawsuit under Title VII for race discrimination based on a disparate impact theory, i.e. that they were denied jobs as the result of a flawed employment test. In order to fall within the 300-day deadline to file a claim, the firefighters asserted that each time the fire department relied on the test to make a hiring decision a separate act of discrimination occurred, and hence constituted a “continuing violation.”

The trial court agreed and held that the score of 89 was statistically meaningless and had a “severe disparate impact against African-Americans.” The appeals court reversed.

On Monday, the U.S. Supreme Court reversed the appellate court decision. Writing for the majority, Justice Scalia stated that each use of a forbidden employment practice gave rise to a separate claim of discrimination. He distinguished between disparate impact and disparate treatment claims, noting that for disparate impact claims deliberate discrimination need not be shown within the limitations period. Although Scalia acknowledged this decision might allow suits for long-established practices, ruling otherwise would allow employers to use “an unlawful practice with impunity.”

Continue reading "Supreme Court Finds Black Firefighters’ Race Discrimination Claim Timely" »

Many times as a condition of employment a new hire will sign an employment agreement containing a mandatory arbitration agreement. Often, these arbitration agreements provide that an arbitrator has the exclusive authority to resolve certain employment disagreements.

Although arbitration may have many advantages, such as being quicker and less expensive than traditional litigation, the mandatory arbitration clauses often found in employment agreements or employee handbooks can be unfair and contain unfavorable provisions.

In Rent-A-Center West Inc. v. Jackson, U.S., No. 09-587, oral argument 4/26/10), an African American account manager – Antonio Jackson - challenged who should determine if the mandatory arbitration clause he signed as a condition of employment was unconscionable and unenforceable – an arbitrator or the federal court.

The arbitration issue arose out of Jackson’s race discrimination case against Rent-a-Center, for the alleged failure of Rent-A-Center to promote him and its promoting of non-African American employees with less seniority. After complaining to his superiors, the Jackson was transferred and eventually fired.

The company then filed a motion to compel arbitration in order to resolve Jackson’s discrimination claims. Jackson objected, asserting that the arbitration agreement was “unconscionable and unenforceable” in part because it limited discovery and that he was told it was non-negotiable when he was hired by Rent-A-Center.

A decision is expected in June, however much of the questioning focused on whether the issues raised in this case deal with the formation – or “making of the agreement” – in which case the Court must decide if the agreement is valid or "post-formation” issues which the arbitrator would decide.

Continue reading "Supreme Court Evaluates Who Should Decide Validity of Arbitration Agreements" »

The United States Supreme Court has recently issued a number of very employee-friendly employment discrimination decisions. In this post and our next few posts, we will discuss these important employment discrimination decisions.

In the first case, CBOCS West, Inc. v. Humphries, the Court addressed the issue of whether 42 U.S.C. § 1981 (Section 1981) permits actions for retaliatory discharge. Section 1981 is a Civil War-era federal civil rights law that gives “all persons within the jurisdiction of the United States . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” Plaintiffs often choose to file race discrimination claims under Section 1981 in addition to Title VII claims because there is no requirement to first file a charge of discrimination with the EEOC, Section 1981’s statue of limitations is much longer than Title VII’s 180-day limitations period, and Section 1981 has no cap on damages. However, unlike Title VII, Section 1981 does not contain language prohibiting retaliation, and many courts have therefore held that retaliation claims are not available under the statute.

In the case, Hedrick Humphries was an African-American manager of a Cracker Barrel restaurant who claimed he was discharged because of his race and because he had complained that another African-American employee had been discriminated against because of his race. Accordingly, he brought suit under both Title VII and Section 1981. The lower court dismissed Humphries’ Title VII claim on procedural grounds and granted Cracker Barrel’s motion for summary judgment on Humphries’ Section 1981 claim, holding that retaliation claims are not available under the statute.

Continue reading "Supreme Court Wrap-Up: Supremes Rule that Section 1981 Encompasses Claims for Retaliation" »

We just received a good result from the Eleventh Circuit Court of Appeals (the federal appeals court for the states of Georgia, Florida and Alabama) in a race discrimination and retaliation case and, at the risk of seeming immodest, we’d like to share it with you. It’s a very employee-friendly decision on the issue of what is an adverse action under the discrimination laws, and the court held that when a company makes a discriminatory decision that it later corrects, the employer’s after-the-fact corrective action does not cure the initially discriminatory act.

In the case, Crawford v. Carroll, our client, Jacquelyn Crawford, is an African American female who was employed at Georgia State University in various capacities in its human resources department. Her dispute with GSU began with a disciplinary action she received for allegedly violating the school’s bereavement leave policy. When she complained about this discipline, she claimed she was subjected to retaliation by her Caucasian supervisor in the form of unreasonable job demands and overly critical scrutiny of her work.

The dispute then escalated when Crawford was denied a promotion to a position that was posted several times during a two-year period even though several managers believed she was the most qualified applicant for the position. During this period, Crawford’s Caucasian supervisors issued her a negative performance review, which made her ineligible for a merit pay increase that she was scheduled to receive in October 2002. In response, Crawford filed an internal complaint contending that the poor performance review and resulting disqualification for the merit pay increase were racially discriminatory and retaliatory.

While her internal complaint was pending, the position that Crawford had been denied was posted for a third time. This time, Crawford was not even selected for an interview, and GSU recommended that a Caucasian male be awarded the position.

Continue reading "Discriminatory Denial of Pay Raise Cannot be Cured by Later Raise" »

“Despite considerable racial progress, racism persists as an evil to be remedied in our Nation.” These words, penned by Eleventh Circuit Court of Appeals Judge William H. Pryor, are from an important race discrimination case recently decided by the federal appeals court for Georgia, Florida, and Alabama, in which the court affirmed a verdict of more than half a million dollars to an African-American employee who was fired after he refused to sign a mandatory arbitration agreement. Goldsmith v. Bagby Elevator Co.

Greg Goldsmith was exposed to a stream of severe racist comments and conduct during his employment, and, although he complained about it repeatedly, his employer failed to correct the problem. He filed a charge of race discrimination with the EEOC. While his charge was pending, the company adopted a mandatory arbitration policy that required all employees to arbitrate all discrimination claims, and it presented the policy to all of its employees to sign. Mr. Goldsmith, however, was the only employee who had a pending discrimination charge against the company. When Mr. Goldsmith refused to sign the arbitration agreement, he was immediately discharged, but other employees who had initially refused to sign the agreement were not discharged.

In Mr. Goldsmith’s subsequent race discrimination case, he argued that his discharge was in retaliation for his refusal to sign the arbitration policy. The jury agreed, awarding him $50,000 in back pay and emotional distress damages and $500,000 in punitive damages.

On the employer’s appeal, the Eleventh Circuit affirmed the jury’s verdict, holding that because Goldsmith had agreed to sign the arbitration policy had the company agreed to exclude his pending charge from the policy, and because the company had tried to convince white employees who initially refused to sign the agreement to change their mind, but it simply discharged Goldsmith, there was sufficient evidence of retaliatory animus by the employer to support the verdict.