New York Employment Lawyer Blog

I am here in Capetown, South Africa with my 12 year old son Jack for the World Cup. The soccer games are amazing and Capetown is an incredibly beautiful seaside city that is full of life. As South Africa hosts the World Cup it is also trying to create a new world image. A new soccer stadium was built in Capetown for the World Cup and it is beautiful. The stadium is just a few miles from Robben Island Prison where Nelson Mandela and other anti-apartheid activists were punished.

Apartheid was legalized race discrimination and it takes on new meaning when you visit South Africa. You see its impact and feel the racism that still exists here. During apartheid, non-whites were only allowed to live in certain areas called townships. These townships still exist and are even more crowded and impovershed. Basic food and medical care is lacking and people suffer. Today we are going to visit a township called Gugulethu.

Jack and I are here in Capetown with a U.S. based charity called Open Arms that helps poor South Africans. Open Arms work in South Africa is focused on Gugulethu and they really help people with serious problems and they need support.

Yesterday we visited the District 6 museum in Capetown which starkly portrays organized government backed racism. District 6 was once a neighborhood in Capetown that was occupied by non-whites. The government forced the residents to leave their homes and tore down the neighborhood. Families were broken up and sent to encampments based on race. If a husband and wife were of slightly different races or even colors they would be sent to different locations and forced to live apart because of their race. Many former residents of District 6 are still living in those townships and they cannot afford to eat much less attend a World Cup soccer game.

On July 29, 2009, the Town of Greenwhich Connecticut was found liable for race discrimination. A federal jury determined that several minority police officers endured a racially hostile work environment and were denied promotions on account of their race. The officers were awarded $160,000 for their troubles. But the town of Greenwhich apparently spent over $700,000 defending the case. For more on this story please the Connecticut Employee Rights Blog

I am glad the minority officers won their case, but the big winners here are the lawyers who were paid $700,000 to defend the town of Greenwhich. Even though they lost the case, they are the ones who got most of the money. Too bad there is not a legal procedure that would allow the money to be diverted from the law firm to the victims. This illustrates one of the problems with our anti-discrimination laws. The laws tend to help the company lawyers more than anyone. I would love to see a study that looks at all the money spent in a given year on employment discrimination cases nationwide. I bet that most of that money goes to the company defense lawyers and not to the victims of discrimination.

Target has agreed to pay over $500,000 to settle a lawsuit in which four management applicants said that they were victims of racial discrimination, the Associated Press reported Tuesday.

The suit was settled Monday when U.S. District Judge Rudolph Randa signed a consent decree, the news service reported. The U.S. Equal Employment Opportunity Commission had accused the Minneapolis-based retail giant Target (NYSE: TGT) of violating the Civil Rights Act of 1964 when it did not hire four black applicants in Milwaukee and Madison, then destroyed their applications in bad faith. The suit alleged that it did not keep documents as required under the law.

Under terms of the settlement, the AP said that Target would pay a total of $510,000 to four applicants that were denied jobs as assistant store managers in 2000 and 2001.

Target also agreed to revise its policies for retaining documents, and pledged to provide supervisors with training on employment discrimination and record-keeping, to report on its hiring decisions and to post a notice about the decree for employees in its stores and offices in the affected district.

The AP quoted Target as saying in a statement that "We do not believe that any member of Target engaged in discrimination. Target prohibits and does not tolerate discrimination based upon race or any other characteristic protected by law."

Previously, Randa had dismissed the case, but that decision was reversed in 2006 when the 7th Circuit Court of Appeals in Chicago ruled that enough evidence was presented for the case to go to trial.

Target said it chose to settle the case because all claims of discrimination were dismissed except for those of the four applicants who alleged they were denied interviews.

An Indian engineer, who was fired by her company after she complained of her senior’s racist conduct, has been awarded USD 5.5 million by a San Francisco federal jury.

The jury found Kiran Pande’s former employer Chevron liable for wrongful termination and retaliation and ruled that she be given roughly USD three million for past and future economic losses, and USD 2.5 million in punitive damages.

Pande, who is India-born and holds a Ph.D. in petroleum engineering from Stanford University, was fired by Chevron in late 2003 after 15 years with the company.

After a three-week trial stemming from incidents that occurred between September 2000 and December 2003, the jury found that Chevron retaliated against Pande after she complained about discrimination and fired her for reasons that violated a public policy.

Chevron first hired Pande as a research engineer in 1988. But in 2001 Pande began to suffer racist remarks and discrimination at the hand of his senior Rex Mitchell, who is now the company’s chief compliance officer, according to her complaint, filed in United States District Court for the Northern District of California.

By March 2002, Pande complained to Mitchell’s supervisor, James Johnson, about Mitchell’s conduct.

Johnson did not investigate, Pande said and alleged that she was given the choice of leaving the company or leaving the group or staying for up to 18 months and getting along with Mitchell.

Later she filed a formal complaint against Mitchell with a company ombudsman.

A black fireman in Los Angeles had dog food secretly laced into his food at the firehouse. His fellow fireman thought it was a prank, but the victim saw it as race discrimination. The San Jose Mercury News reports that the case is set for trial later this month and that the case could settle in the millions.

According to news reports, the fireman, Tennie Pierce, sued the Los Angeles Fire Department for racial harassment and is now willing to settle for 3.1 million. The L.A. City council apparently was willing to pay 2.7 million but Mayor Antonio Villaraigosa vetoed any deal over 1 million. The city is now reconsidering the offer now that trial is set for September 24th.

Experts have warned the City Council that a jury verdict could exceed 7 million. Others say the case is simply unpredictable and could either flop or produce a huge verdict. Like most discrimination cases, both sides have a lot at stake and the outcome is uncertain - so a settlement is likely because neither side wants to lose.

Thanks to OverLawyered for reporting the story in its round up of top stories.

A Central Racial Discrimation Theory faces an interesting challenge.
In a recent op-ed piece in the Wall Street Journal, Mr. James Taranto questions the effect of the disparate impact test established by the Supreme Court in Griggs v. Duke Power Comp. (1971) and codified through the Civil Rights Act of 1991.

The Griggs case established that forcing potential employees to take an aptitude test was discriminatory in that it had a "disparate impact" on minorities. Chief Justice Warren stated that no matter the intent of the test it was unfair to increase the level of difficulty for minorities to gain employment.

Mr. Taranto argues or opines that corporations have outsmarted both the ruling and the law. Neither the Girggs case nor the Civil Rights Act applies to institutes of higher education in their admissions criteria. They are free to base admission on the infamous aptitude tests such as SAT and ACT. Then, since the schools use race as a factor in admissions, the corporations can use college degrees as a prerequisite in hiring. Mr. Taranto concludes that the college degree has become an aptitude test.
If Mr. Taranto's opinion is correct, what does that mean for employment law in general and the future, if not present, of disparate impact as a viable means of proving discrimination?

While there are still countless cases where the rights of minorities are protected by the disparate impact test, the test will be applied much less vigorously if it is seen as being so easily circumvented. Further, the current make-up of the Supreme Court seems prone to do away with race as a factor in admissions. Let me posit this. If the Court does away with racial preferences in school, and schools are permitted to test applicants, and corporations only hire applicants with college degrees, doesn't Griggs and the disparate impact test of the Civil Rights Act become a mere shadow of itself?

For Mr. Taranto's full article please visit: http://www.opinionjournal.com/taste/?id=110010091

According to opponents of affirmative action, when Fortune 500 legal departments force outside counsel to hire more minorities and women, they may be violating federal anti-discrimination laws.

In a research paper released Tuesday, Curt Levey, a conservative activist who helped lead the high-profile fight against the University of Michigan's affirmative action programs, says firms may violate Title VII of the Civil Rights Act, the federal law that prohibits employment discrimination, if they give minorities special preferences in the hiring process. "Whether you are using racial preferences because your clients want you to or [because] you want to, you almost certainly are risking liability," Levey said.

Levey presented his paper Tuesday at a Washington, D.C., forum on law firm diversity sponsored by the American Enterprise Institute.

Over the last few years, Wal-Mart Stores Inc., and others have raised the stakes for outside counsel, pressing firms to increase diversity in their ranks or risk losing clients. In one case, reported in December by Corporate Counsel, a sibling publication of The American Lawyer, Wal-Mart dumped an outside firm that didn't adequately adhere to the company's diversity program.

Levey, however, argues that law firms who have responded to client demands by putting together legal teams of a particular racial composition could face discrimination suits. "Not only may a law firm be liable for discrimination, but so may be the individual employees and partners at the law firm that participated in the discriminatory decisions," writes Levey in his paper titled "The Legal Implications of Complying with Race- and Gender-based Client Preferences."

Law firms have long struggled with diversity issues. Just 5 percent of partners at firms are minorities, according to Minority Law Journal, another American Lawyer sibling. The National Association for Law Placement says that in 2006, 5 percent of partners in the nation's major firms were minorities, and women accounted for about 18 percent of big firm partners despite representing nearly half of law school graduates.

According to an article in today’s New York Times, the Equal Employment Opportunity Commission has filed a race discrimination class-action lawsuit against Walgreen Company, the nation’s largest drugstore chain, alleging that it discriminated against thousands of black employees across the country, including managers and pharmacists, according to a class-action lawsuit filed yesterday.

The agency’s action comes after a lawsuit filed in 2005 against Walgreen by several current and former black employees who said the company made store assignments based on race and gave the plaintiffs jobs in either predominantly black neighborhoods or less-desirable ones.

Walgreen, which is based in Deerfield, Ill., has disputed the accusations in that lawsuit and it said yesterday in a statement that it was disappointed by the agency’s decision to bring its suit. Both actions were filed in United States District Court for the Southern District of Illinois in East St. Louis.

Walgreen has 5,638 stores in 48 states and Puerto Rico, according to its Web site. It had sales of $47.4 billion in 2006.

Agency officials described the Walgreen case as the biggest race discrimination actions brought by it in recent years. After more than 20 current and former employees nationwide complained to the agency, the E.E.O.C.’s district offices in St. Louis and Miami conducted an investigation, the agency said in a statement. It said it decided to bring the case after attempts to reach a voluntary settlement were unsuccessful.
Robert G. Johnson, a lawyer in the agency’s St. Louis office, said that it had reviewed an analysis commissioned by plaintiffs’ lawyers that looked at how Walgreen assigned its stores and paid managers.

After doing so, the agency determined that black managers were frequently assigned to poorer-performing stores, which made them less likely to be promoted, he said. It also concluded that discrimination at Walgreen was widespread, institutional and directed at blacks working as managers, pharmacists and trainees.

“Blacks were being paid less,” Mr. Johnson said.

Johnny Tucker, a store manager who is a plaintiff in the private lawsuit, said in a telephone interview that he had spent his entire 21-year career at Walgreen working primarily at stores in black or inner-city neighborhoods.

As a result, he said he realized that he and other black managers were not keeping up with their white counterparts.

“The reason is that we were placed in low-income, low-profit, low-sales locations,” said Mr. Tucker, who was among the employees who complained to the E.E.O.C.
He applauded Walgreen for having stores in inner-city neighborhoods. But he said the company needed to spread the challenges of managing such stores among all its employees, not just black ones. Over the years, he added, he had been held up at gunpoint and threatened with a knife.

Amy Coopman, one of the plaintiffs’ lawyers suing Walgreen on behalf of Mr. Tucker and several other current and former Walgreen employees, said she was seeking to have it certified as a class action on behalf of all the company’s employees.

The E.E.O.C. action is seeking both money damages for Walgreen employees who have been the subject of discrimination as well as changes in the company practices. There have been no monetary amounts set forth in the suit as of yet, but the E.E.O.C. laid out their goals in an official statement that they would be seeking monetary damages as well as changes in the overall company policy.

Target Corporation has agreed to pay $775,000 to a group of black workers as part of a litigation settlement of a race discrimination and retaliation case brought by U.S. Equal Employment Opportunity Commission ("EEOC"). The settlement also includes employer training and other remedial relief.

According to the EEOC charge, Target violated Title VII of the 1964 Civil Rights Act by creating and condoning a racially hostile work environment at its Springfield, Pa., store for a class of African American employees. The racial harassment included inappropriate comments and verbal berating based on race. Further, when one of the black employees objected to this treatment, he was allegedly retaliated against, leaving him no choice but to resign.

The EEOC said in the suit that Michael Hill, a senior merchant at the Springfield store (an apprentice in training to become a store manager) and others were subjected to racial harassment by a white store manager, whom they reported for the unlawful conduct. Hill ultimately left the job due to the negative health effects of the discrimination and the lack of effective response to his internal complaints. The EEOC charged that Hill’s resignation was forced upon him, amounting to a constructive discharge.

The consent decree settling the lawsuit provides Hill and a class of 13 African American employees with $775,000 and requires that all managers and supervisors at the Springfield store will receive training in the company’s equal employment opportunity policies. The decree also requires Target to post a notice about the settlement; ensure that its complaint procedure is effectively communicated to the workforce; and take remedial action if an employee violates its equal employment opportunity policy.

Title VII makes it illegal to deny a person any employment opportunity because of that person’s race or color, sex, religion or national origin. A work environment free from illegal harassment and different treatment based on race are included in the range of such employment opportunities. In addition, Title VII recognizes that persons made to work in an intolerable environment may be constructively discharged, or compelled to resign their employment. Finally, it is illegal to retaliate against someone because he has made a complaint of illegal discrimination.

To read the full story, go to http://eeoc.gov/press/1-26-07.html

Can termination based on seniority constitute race discrimination?

The Philadelphia Inquirer has seen better days financially and now it faces reputational damages. Its recent financial troubles have led to a lay off. The paper has terminated 71 newsroom employees which is equal to 17 percent of its staff. These layoffs were based on seniority guidelines found in the newspaper union’s contract. These guidelines disproportionally disadvantage minorities. According to the Newspaper Guild of Greater Philadelphia, 17 of the 71 journalists laid off, or about 24 percent, are minorities. The National Association of Black Journalists and the newspaper's editor and unions are squaring off to forestall any further inflammation. While litigation has not begun, this case is one to watch.

This information comes courtesy of a recent NY Times article. If you would like to read further:http://www.nytimes.com/2007/01/15/business/media/15philly.html?ref=media