Thursday, October 9, 2014

Out of the Dark Ages and Into the Shadows

This year, the Equal Employment Opportunity Commission (EEOC) is celebrating the 50th  anniversary of the passage of the Civil Rights Act of 1964.  Signed by President Lyndon B. Johnson, the legislation arose out of years of nonviolent protests culminating in the 1963 March on Washington.  One year later, the Civil Rights Act was enacted, including Title VII, which prohibits discrimination on the basis of race, color, religion, national origin, and sex in the workplace.

On the night President Johnson signed the far-reaching legislation, he noted that:

[O]ur generation of Americans has been called on to continue the unending search for justice within our own borders.  We believe that all men are created equal.  Yet many are denied equal treatment.  We believe that all men have certain unalienable rights.  Yet many Americans do not enjoy those rights.  We believe that all men are entitled to the blessings of liberty.  Yet millions are being deprived of those blessings–not because of their own failures, but because of the color of their skin....But it cannot continue.  Our Constitution, the foundation of our Republic, forbids it.  The principles of our freedom forbid it.  Morality forbids it.  And the law I will sign tonight forbids it.  http://www.eeoc.gov/eeoc/history/cra50th/index.cfm

On July 2, 2014, Jacqueline A.  Berrien, Chair of the EEOC, commemorated the Act’s 50th anniversary, writing that, “the EEOC has worked successfully to advance its mission to stop and remedy unlawful employment discrimination so that the nation can realize the vision of Title VII and of the EEOC: justice and equality in the workplace.  Never before has our nation enjoyed greater inclusivity in the workplace and better reflected the diversity of the American people.”  Id.  (emphasis in original).  However, Ms. Berrien slightly tempered her enthusiasm for the success of the distribution of equality in the workplace, noting, “the goals of Title VII and the Civil Rights Act of 1964 in its entirety are not yet achieved, and the 'unalienable right' and 'blessings of liberty' promised in the nation's founding documents...are still elusive for too many people.  The EEOC receives nearly 100,000 charges of discrimination each year, with retaliation and racial discrimination remaining our greatest challenges.” Id.

What is most alarming is that, despite having familiar prohibitions against workplace discrimination in place for 50 years, some employers still engage in vile, almost incomprehensible discrimination.

Race Discrimination:

In September 2014, the EEOC required McCormick & Schmick's restaurant chain in Baltimore to pay $1.8 million and provide significant injunctive relief.  In a lawsuit filed by the EEOC in 2008, the EEOC charged that McCormick had engaged in a pattern and practice of race discrimination by refusing to hire African-American job applicants for front-of-the-house positions from 1998 to 2010, and that those few African-Americans who had been previously hired for front-of-the-house positions were denied equal work assignments because of their race.  The EEOC also charged that McCormick & Schmick's advertising for job opportunities on the company's website visually depicted a preference for non-African-American workers.  The EEOC required McCormick & Schmick's to implement numerical goals for the hiring of African-American job applicants for front-of-the-house positions at its two Baltimore locations, and to review its job advertisements to ensure they do not express intended or unintended preferences because of race.  http://www.eeoc.gov/eeoc/newsroom/release/9-12-14a.cfm

On October 1, 2014, the EEOC filed suit against Huddle House restaurant chain.  According to the EEOC's lawsuit, Huddle House in Pine Bluff, Arkansas, subjected an African-American woman who worked as a shift leader to racially offensive language.  Her management team regularly referred to her and other African-American employees as “ghetto,” “hood,” “hood rat,” “Huddle Hos,” and used the “N-word” when visiting the restaurant.  The EEOC filed suit after first attempting to reach a pre-litigation settlement with the restaurant chain through its conciliation process.  http://www.eeoc.gov/eeoc/newsroom/release/10-1-14a.cfm

In September 2013, River View Coal, a subsidiary of Alliance Resources Partners LP (the third-largest eastern United States coal producer), entered into a consent decree settling a race discrimination lawsuit for $245,000 and injunctive relief.  According to the EEOC's 2011 lawsuit, River View Coal had engaged in a pattern and practice of excluding African-American applicants from coal mining jobs at its Waverly, Kentucky, facility since 2008.  As part of the settlement, River View was prohibited from engaging in future discrimination against African-American employees or applicants, was required to train its hiring managers and employees involved in the hiring process, and was required to increase its racial diversity in the workforce.  http://www.eeoc.gov/eeoc/newsroom/release/9-26-13a.cfm

In December 2012, Hamilton Growers, Inc., agreed to pay $500,000 to a class of American seasonal workers–most of whom were African-Americans–who were subjected to race and national origin discrimination.  The EEOC’s 2011 lawsuit alleged that Hamilton Growers had unlawfully engaged in a pattern and practice of discrimination against the American workers by firing virtually all of them, yet retaining workers from Mexico during the 2009, 2010, and 2011 growing seasons.  According to the EEOC, Hamilton Growers had also fired at least 16 African-American workers in 2009 based on their race, as their termination was coupled with race-based comments made by a management official.  The lawsuit further alleged that Hamilton Growers required the American workers to pick fields which had already been picked by foreign workers, thereby reducing their pay.  The consent decree requires Hamilton Growers to exercise good faith in hiring and retaining qualified workers of American national origin and African-American workers for all farm work positions, including supervisory positions.  http://www.eeoc.gov/eeoc/newsroom/release/12-13-12.cfm

In April 2012, Bankers Asset Management entered into a Consent Order with the EEOC requiring Bankers Asset to pay $600,000 to settle the lawsuit filed by the EEOC in 2010.  In the lawsuit, the EEOC alleged that Bankers Asset had excluded African-American applicants for jobs at the company's Little Rock, Arkansas location, based on their race.  As part of the settlement, Bankers Asset was required to provide mandatory three-hour training on race discrimination and retaliation to all of its employees, have its president inform the employees that the company does not tolerate discrimination, and issue a memo to one of its hiring officials explaining that the company does not discriminate on the basis of race and prior protected activities.  http://www.eeoc.gov/eeoc/newsroom/release/4-19-12.cfm

In January 2012, Matrix, LLC, was required in a consent decree with the EEOC to pay $450,000 to settle the EEOC's race discrimination and retaliation lawsuit filed in 2011.  In the lawsuit, the EEOC alleged that Matrix officials told a Caucasian supervisor not to hire any more African-American cleaners to work at a client's site in Pennsylvania.  When she hired them anyway, based on their qualifications, Matrix terminated her.  The EEOC also alleged that Matrix management officials had told African-American cleaners to sit in the back of the cafeteria during break times, and later would not allow them to sit in the cafeteria at all.  Matrix later fired all the African-American cleaners and replaced them with an entirely non-African-American cleaning crew.  The consent decree prohibited Matrix from discriminating on the basis of race or retaliation, and required Matrix to train its supervisors and managers about the prohibitions against racial discrimination and retaliation.  http://www.eeoc.gov/eeoc/newsroom/release/1-6-12.cfm


Gender Discrimination:

In June 2013, the EEOC filed suit against Performance Food Group, alleging that since 2004, PFG had engaged in an ongoing pattern of refusing to hire women for operative positions at their Broadline distribution facilities.  PFG senior vice presidents and other high-ranking management officials repeatedly made comments that were tantamount to directing managers to favor males and to discriminate against females in hiring, the EEOC charged.  The United States District Court for Maryland denied PFG's partial motion to dismiss on March 11, 2014.  In the Order, the Judge cited to several examples of gender-based discrimination, as alleged by the EEOC: (i) A woman who was interested in being promoted to a Warehouse Supervisor was told that it would be “useless and non-productive for her to apply” because the job was not for her, and she could get “hurt as a girl.”  (ii) A warehouse manager told a woman warehouse applicant with seven years of experience that PFG “did not feel safe with women working in the warehouse, did not want women working in the warehouse, that the work was too strenuous, women didn't last, they quit, they had child care issues.”  (iii) A Warehouse Manager was told by Human Resources that females in the warehouse “were a distraction” and “couldn't do the job.” EEOC v.  Performance Food Group, Inc., No.  MJG-13-1712 (D.  Md.  March 11, 2014).

In 2009, Preferred Labor, LLC, was required by a consent decree with the EEOC to pay $250,000 in a lawsuit filed by the EEOC alleging that Preferred Labor had denied female applicants job referrals based on their sex and complied with sex-based discriminatory requests from their client.  A woman who applied at the company's Worcester, Massachusetts facility in 2005 was told that only waitressing, dishwashing, and maid service jobs were available for women.  EEOC v.  Preferred Labor, LLC, d/b/a Preferred People Staffing (D.  Mass.  July 6, 2009).

These recent cases demonstrate that discrimination has not been eradicated in the workplace, despite the fact that anti-discrimination laws have been in place now for 50 years. Some employers simply defy Title VII's prohibitions against discrimination in the workplace, defile employees with racial epithets, and subject them to lesser working conditions or assignments. Some employers still engage in overt segregation. That the EEOC must require these employers in consent decrees to refrain from discriminating, to inform their hiring officials that the company does not discriminate, or to exercise good faith in hiring and retaining employees, underscores the embarrassingly low standards of behavior that are expected of employers. Yet, some employers fail to meet even these minimal standards.

As Ms. Berrien recognized, “this generation is–as was the generation before it–still called upon to 'continue the unending search for justice.'” http://www.eeoc.gov/eeoc/history/cra50th/index.cfm While Title VII and other anti-discrimination laws have emerged to bring society out of the Dark Ages, there is still much work to be done, much more need for inclusion in the workplace, to bring us even into the shadows.

Written by:  Valerie Chastain


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