CLASS NINE-RACIAL DISCRIMINATION

RACIAL DISCRIMINATION UNDER TITLE VII Equal Employment Opportunity Commission (EEOC) identifies five racial categories: White Black Hispanic Asian or Pacific Islander American Indian or Alaskan Nation NOTE: White employees, as well as minority Employees, may claim racial discrimination in violation of Title VII.

Discrimination on Multiple Bases It is illegal for an employer to discriminate on the basis of skin color. For example, an Israeli or Arab who has a dark skin tone would have a cause of action if an employer made decisions based on skin color. Sometimes, people are discriminated against for more than one illegal reason. For example, a 55-year old African American female who is discharged might make claims on the basis of race, age and sex discrimination.

TYPES OF RACE AND COLOR DISCRIMINATION Disparate treatment – intentional Discrimination based on race Discrimination can be directed towards an individual or a group (systemic) who is/are treated differently from other employees because of his/her/their race. Disparate impact discrimination-a policy which is nominally race-neutral could still be actionable if it has a disparate impact upon persons of a particular race-e.g an intelligence and ability tests could be struck down on the basis of the disparate impact theory unless they are shown to be job-related.

Affirmative Action Plans Affirmative action plans- although employers must practice racial equality in the future, most racial preference plans are voluntary. Affirmative action plans are risky, and could give rise to Title VII reverse discrimination claims. An affirmative action plan is more likely to be upheld if there is ample evidence of past discrimination, and the policy is time-limited and narrowly tailored to produce the desired effect with the least possible discrimination against the non-preferred races. See Rutherford v. City of Cleveland, 179 Fed.Appx 366 (6th Cir. 2006) and Kohleck v. City of Omaha, 447 F.3d 552 (8th Cir. 2006).

ESTABLISHING A PRIMA FACIE CASE OF RACIAL DISCRIMINATION He/She is a member of a protected class He/She applied for and was qualified for position sought He/She was rejected despite being qualified (or was demoted or terminated) Posted job remained vacant, or plaintiff was replaced by someone who was not in protected class After employer stated legitimate, non- Discriminatory reason for reportedly unequal treatment, burden shifts back to plaintiff to prove that employer’s articulated reasons constituted pretext fro discrimination.

Stray Remarks Do Not Necessarily Give Rise to a Discrimination Claim Title VII claims frequently arise out of race-based remarks by supervisors or co-workers. In one case, however, the court held that a supervisor who called one of his subordinates “boy” was not necessarily engaging in racial discrimination. The significance of the remark depended upon the context, inflection, tone of voice and local custom. Ash v. Tyson Foods, 546 US 454.

Hostile Racial Environment To establish a hostile environment case, it is not enough to show a few isolated incident of racial enmity or sporadic racial slurs. There must be a steady barrage of opprobrious racial comments. Herrera v. Lufkin Industries, 474 F.3d 675 (10th Cir. 2007). In Herrera, there was sufficient conduct to establish a pattern. A supervisor persistently used terms such as “f—ing Mexican” or “come here, Spanish lover” and constantly hounded plaintiff to complete required paperwork even though non-Hispanic employees, who were left alone, were just as behind on their paperwork.

DEFENSES AGAINST RACIAL DISCRIMINATION CLAIMS Non-discriminatory motive Affirmative Action program – Evidence could include: bona fide personnel policies listing job qualifications and condition of employment and termination Bona fide seniority or merit system.

Bona Fide Occupational Qualification Defense Apparently Not Applicable in Race Cases An employer generally may not rely upon the “bona fide occupational qualification” defense available in age or sex discrimination cases. This would cut both ways. Therefore, if a university were choosing a new chairperson for an African-American Studies program, and a white professor with the requisite knowledge and scholarship were to apply for the position, the university would have to give him or her fair consideration.

Unique Case-Former Negro League Baseball Players In Moran v. Seelig, 447 F.3d 748 (9th Cir. 2006), the court upheld a pension plan that gave Major League Baseball (MLB) pension benefits to African-American players who had played in the Negro Leagues and had been barred from MLB. A group of white players challenged the action, but the court held that this was a permissible remedy for past discrimination.

Remedies for Race Discrimination 1. Back pay-includes regular wages, overtime, shift differential, premium pay and fringe benefits. 2. Reinstatement 3. If reinstatement not feasible, front pay is awarded from the date of the judgment until plaintiff obtains the position that he or she would have had but for the discrimination. 4. Plaintiff has a duty to mitigate damges 5. Title VII has caps on recovery of compensatory damages, depending on the size of the employer. See page 244 of the book for details.