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Articles Tagged with race discrimination lawyer

The United States Court of Appeals for the Third Circuit held on July 29, 2021, that a white employee’s lawsuit against his former employer for workplace retaliation under Title VII could move forward. This decision is especially notable because it is the first time the Third Circuit has issued a directive on race-based associational discrimination. In the case Kengerski v. Harper, No. 20-1307, 2021 WL 3199225 (3d Cir. July 29, 2021) the plaintiff employee alleges he was fired in retaliation for complaining about his supervisor’s racist remarks targeting his bi-racial grandniece and Black and Asian coworkers.

Title VII Retaliation vs. Harassment Claims

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment discrimination and harassment based on race, color, religion, sex and national origin. It applies to all employers with fifteen or more employees, except for employees of the federal government, and it is enforced by the Equal Employment Opportunity Commission (EEOC). Under Title VII, an employer may not discriminate with regard to any term, condition or privilege of employment, including recruiting and hiring, deciding who to promote and transfer, assigning work, measuring performance, providing benefits and disciplining or firing. It means that no employee or job applicant can be treated differently in the workplace due to his or her protected characteristics. Importantly for the Kengerski plaintiff and others similarly situated, it also means that no employee, even if he or she is not part of a protected class, can be discriminated against at work based on his or her association with someone else who is part of a protected class. This unlawful practice is called “associational discrimination”.

SUPREME COURT UNANIMOUSLY RULES THAT SUPERVISOR’S USAGE OF RACIAL SLURS AGAINST EMPLOYEE ON ONLY TWO OCCASIONS ARE ENOUGH TO ESTABLISH SEVERITY IN A HOSTILE WORK ENVIRONMENT CASE

In an unanimous opinion, the New Jersey Supreme Court has held that the use of offensive racist slurs on two occasions could meet the severe and pervasive standard required to establish a claim for hostile work environment under the New Jersey Law Against Discrimination. The is being viewed by New Jersey employment lawyers as a victory to employee rights and their right to a work environment free of discrimination.  In denying summary judgment on behalf of the employer, the race workplace discrimination case will now proceed to trial with the ultimate outcome to be decided by a jury. 

IMG_1E2345D1B7BA-1-300x225In the case, Rios, Jr. v. Meda Pharmaceutical, Inc., the employee claims that on two separate occasions, his direct supervisor called him a “sp*c” and this conduct amounted to a hostile work environment. After he reported both instances to Human Resources (HR), the supervisor placed him on a performance improvement plan and he was eventually fired.  At the end of discovery, the employer filed a motion for summary judgment to dismiss the case arguing that only two incidents were not pervasive or severe to constitute an actionable claim for hostile work environment.  The trial court granted the motion and dismissed the lawsuit. 

In January, during a television news interview, then President Donald Trump said about the novel coronavirus, “It’s one person coming in from China.” That one remark, seemingly a purely geographical description of the virus’ origin, became the starting point from which our former President attempted to shift blame from his doorstep to China’s for mounting deaths, unemployment, shuttered businesses, food and housing insecurity and widespread panic. By convincing his supporters that our country’s pandemic response was actually Americans being forced to fight a war against an invisible Chinese invader, Trump caused a drastic shift in our political climate that resulted in Asian Americans becoming targets of hate crimes, harassment and discrimination.

IMG_1E2345D1B7BA-1-300x225Can one person’s words, even if made publicly, really cause an entire race of people to suffer abuse and harassment? In short, yes; harassment or much worse. All we need to do to know that is to revisit the history of Nazi Germany, the Yugoslav Wars of the 1990s, the Rwandan genocide in 1994, and the American response to the Japanese after World War II. Xenophobic rhetoric, especially when propagated by a political leader, can absolutely lead to hate and discrimination and in the worst cases, extreme violence. After the September 11, 2001 terrorist attacks, the Equal Employment Opportunity Commission (EEOC) tracked the number of bias complaints filed by Arab, Muslim, Middle Eastern, South Asian and Sikh workers in the U.S. and saw a 250% increase in the wake of 9/11. This drastic response occurred despite then President George W. Bush urging people not to discriminate.

In contrast, consider Trump’s narrative around the coronavirus. In April 2020, at a press briefing, Trump linked the unfolding pandemic to his conservative immigration policy: “Therefore, in order to protect American workers, I will be issuing a temporary suspension of immigration into the United States”. In May 2020, as the pandemic worsened on U.S. soil and Trump was taken to task for his perceived nonchalance around the virus, he responded, “Intelligence has just reported to me that I was correct, and that they did NOT bring up the Corona Virus subject matter until late into January, just prior to my banning China from the U.S.” In a tweet that same month, “Great reviews on our handling of Covid 19, sometimes referred to as the China Virus.” In July 2020, as the country approached 4 million cases of Covid-19, unemployment was rising, and growing numbers of citizens were becoming food or housing insecure, Trump tweeted, “We are United in our effort to defeat the Invisible China Virus, and many people say that it is Patriotic to wear a face mask when you can’t socially distance. There is nobody more Patriotic than me, your favorite President!”Later that month, “You will never hear this on the Fake News concerning the China Virus, but by comparison to most other countries, who are suffering greatly, we are doing very well – and we have done things that few other countries could have done!” Remembering Herman Cain during a White House briefing after his death from Covid-19 last year, Trump said “he passed away from the thing called the China virus.” In August 2020, as the U.S. reached 6 million cases of Covid-19, Trump referred to the virus publicly as “the China virus” at least another 4 times, including during a virtual rally in Nevada when he said, “I mobilized the largest response since World War II to fight the China virus and we are really doing well. Our numbers are excellent, really really good, and hopefully, we’re rounding the final turn on that disaster given to us by China.” As U.S. deaths passed 200,000 in September 2020, Trump linked the coronavirus to China a dozen more times, often by using wartime analogies and imagery to emphasize his patriotism and to cast the virus as a hostile foreigner. During rallies in North Carolina, Nevada, Michigan and Florida, he referred to it as “the invisible enemy” and made repeated references to defeating “the China virus.” During a rally in North Carolina, he stated “We will end the pandemic from China. We will end our — our plague from China.”

In Manchester, a township in Ocean County, New Jersey where 92% of its approximately 43,000 residents are white, a star high school basketball player’s attempt to speak out against issues of race discrimination and inequity was shut down by the Board of Education. At the most recent Board meeting, star basketball player Destiny Adams, presented a thoughtful speech to the Board to persuade them that the girls basketball team should be permitted to wear Black Lives Matter sweatshirts during the pregame warmup to their first game of the season, which took place Tuesday, January 26. Destiny was supported at the meeting by her mother, an attorney, and her father, the principal of Manchester High School, both of whom also spoke. Without discussing her proposal among the members of the Board or taking an official vote on it, the Board denied her request, stating that warmup gear may only display the school’s name.

fullsizeoutput_3c-1-300x169In speaking to news media, Destiny said of the Board’s decision, “They told me no, but that can’t really silence me, so we needed to find a way around it”. In fact, Destiny and most of her teammates wore Black Lives Matter sweatshirts prior to their season opener last night against Jackson Liberty High School despite the Board’s ruling. Destiny and another teammate also wore socks that said Black Lives Matter, while another player wrote Black Lives Matter on her sneakers.

According to the New Jersey State Interscholastic Athletic Association, what players wear during pregame warmups is determined at the school’s discretion. From a legal standpoint, the question is how to balance public school students’ First Amendment right to freedom of expression with a school’s right to ensure the school environment is not disrupted and the rights of one student do not infringe on the rights of another.

While there are federal and state laws that protect employees from racial discrimination in the workplace throughout the country, these laws are not always uniform in terms of the severity or pervasive enough of the complained of conduct that constitute an actionable hostile work environment.  Generally speaking, when the racially discriminatory conduct is so severe or pervasive as to change the nature of the job, a worker has grounds to bring a lawsuit for hostile work environment. But what type of conduct meets the standard for a successful claim? More specifically, can a single instance of race-based discrimination create a hostile work environment? The answer may depend on where the suit is filed. For example, in New Jersey, our courts have held that a single racial epithet can constitute a hostile work environment, while other courts outside New Jersey have adopted a strict rule that a single racial epithet, no matter how offensive, can never be enough to constitute a hostile work environment.

IMG_1E2345D1B7BA-1-300x225Earlier this month, a judge in the federal district court for the Northern District of Alabama granted a defendant employer summary judgment against three plaintiff employees’ claims of racial discrimination and hostile work environment. In Bone v. Alliance Investment Co., LLC, Case No. 5:18-cv-01706-LCB (N.D. Ala. Oct. 8, 2020), three African American carpenters sued their employer, claiming that supervisors frequently referred to them as the n-word behind their backs and routinely assigned them more physically demanding work than their white counterparts. One plaintiff was called the n-word directly to his face and others overheard it being used. The company argued that the employees had failed to present evidence that the harassing conduct was severe or pervasive enough to alter the terms or conditions of their employment. Agreeing, the court dismissed the hostile work environment claim with prejudice.Specifically, the court found that in order to establish a hostile work environment in the Eleventh Circuit, the plaintiffs had to show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” The test for severe and pervasive conduct is both subjective and objective, meaning that the environment became what a reasonable person would find hostile or abusive as well as one that the victim subjectively perceived to be abusive. The court found that although the behavior was subjectively abusive to plaintiffs, under the totality of the circumstances, a reasonable person would not find the workplace to be hostile. Recognizing the severity of the n-word, the court still held that because the plaintiffs’ job performance was not impacted by it, their claim for hostile work environment failed as a matter of law.

The Bone case is reminiscent of a 2019 case decided by recently appointed Supreme Court Justice, Amy Coney Barrett, when she sat on the U.S. Court of Appeals for the Seventh Circuit. In Smith v. Ill. Dept. of Transportation, 936 F.3d 554 (7thCir. 2019), an employee for the Illinois Department of Transportation was fired after a probationary period of employment during which he allegedly performed quite poorly. The employee sued the Department, arguing that it had subjected him to a hostile work environment and fired him in retaliation for his complaints about racial discrimination. The Circuit Court affirmed the dismissal of his claims for failing to establish a hostile work environment as a matter of law. In his lawsuit, the employee claimed he was treated differently from other employees due to his race and his supervisor called him the n-word during a confrontation. The employee was fired two weeks after the confrontation. Addressing the hostile work environment claim, the Circuit Court found that the majority of the harassment he cited was unconnected to his race and arose from generally unpleasant and profane language that was used routinely toward all employees. The one incident, however, that plainly constituted race-based harassment was when one of his supervisors called him a “stupid ass [n-word]” after finding out that he had filed a complaint with the Equal Employment Opportunity office. The Court noted that “while there is no ‘magic number of slurs’ that indicates a hostile work environment, an ‘unambiguously racial epithet falls on the more severe end of the spectrum.’” Even still, a plaintiff cannot win a hostile work environment claim simply by proving that the word was said unless he can also show that it altered the conditions of his employment. Unlike in Bone, the Seventh Circuit Court found that the plaintiff failed to prove even his own subjective belief that being called the n-word created a hostile work environment. The court found that because his entire employment had been rocky, and by the time he was called the n-word his termination proceedings were already under way, there was no proof that the racial slur changed the always unpleasant work environment. Because he could not show that the distress he suffered from being called the n-word was distinct from the distress he suffered routinely at work, the plaintiff’s claim for hostile work environment was dismissed.

New Jersey Governor Phil Murphy signed legislation this month that makes it a crime to use 911 as a tool to intimidate another person based on his or her race. The bill, which has already taken effect, was introduced to the State Senate on June 29, 2020. It amends and expands the state’s existing false public alarm statute to include false incrimination and filing a false police report as forms of bias intimidation when they are done in an attempt to intimidate or harass an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

IMG_5257-300x169Bias intimidation has long been a crime in New Jersey, and it occurs when a person is the target of a crime specifically because of his or her race or other protected status. When this additional layer of intent is present in the commission of a crime, it is commonly referred to as a “hate crime”. The penalties for committing a hate crime or bias intimidation are usually harsher and in addition to the penalties for committing the underlying offense. The reason for the harsher penalties is that the charge of bias intimidation is generally considered a crime of one degree higher than the most serious underlying offense. For instance, let’s assume that a Caucasian man ran his car into an African American man as he crossed the street, causing serious bodily harm, and the Caucasian man did so because of his race. Because assault by auto resulting in serious bodily injury is a crime of the fourth degree, the Caucasian driver is subject to 18 months in prison and a $10,000 fine for assault by auto. When the additional charge of bias intimidation is considered, he is now facing an additional 3-5 years in prison and $15,000 fine.

The state’s new law addressing racially-motivated 911 calls and false police reports appears to work slightly differently, however, by merging bias intimidation with the underlying crime. The statute (found at N.J.S. 2C:33-3), has been amended to add:

Earlier this week, New Jersey’s Assembly and Senate passed a ban on discrimination associated with hair. Discrimination based on hair has been popping up in courtrooms and legislatures across the country. Once Governor Murphy signs off, it will be unlawful to discriminate based upon hair.

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In several states, bills have been proposed to increase protections from hair based discrimination. The New Jersey State Assembly Labor Committee approved a bill this past summer to ban discrimination based upon hairstyles and textures that are traditionally associated with race and is considered a form of race discrimination. The bill was prompted by a December 2018 incident involving a New Jersey high school wrestler forced by a referee to cut his hair, styled in locs, or forfeit the match. The bill was proposed by Assemblywoman Angela McKnight, Hudson County’s representative, following the outrage surrounding the wrestler’s forced hair cut—performed publicly by the referee, in front of spectators. The bill, originally introduced this summer that was recently passed, amends the New Jersey Law Against Discrimination to reflect that “race” is inclusive of traits “historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.” “Protective hair styles includes, but is not limited to, such hairstyles as braids, locks, and twists.”

The New Jersey Law Against Discrimination prohibits employers and places of public accommodation from discriminating against employees and other persons.  While race has long been recognized as a protected class of persons protected by the state discrimination law, the New Jersey law will specifically prohibit discrimination based upon hair, if the governor signs it into law.

Last month New York City took action to combat an often-overlooked form of race discrimination involving employee’s hair.  In February 2019, the New York City Commission on Human Rights (the “Commission”) published new guidance that explains that employers (as well as housing providers and providers of public accommodations) can no longer institute policies or practices that discriminate against people on the basis of their natural hair texture or their choice to wear a hairstyle commonly associated with African Americans, such as an afro or dreadlocks.  According to this new guidance, the Commission views such policies and practices as violative of the New York City Human Rights Law (the “NYCHRL”), announcing that in the Commission’s view, “Black hairstyles are protected racial characteristics under the NYCHRL because they are an inherent part of Black identity.

Discrimination based on hairstyles is an issue that courts across the country have grappled with over the years, with generally employer-friendly results. Courts have been fairly consistent in finding that where a person’s hairstyle is tied to their faith, employers cannot restrict their right to express their faith through their chosen hairstyle. On the other hand, where the person’s hairstyle is tied to their cultural identity and heritage, courts have not been so kind.  For the most part, if an employer implemented a race-neutral policy banning hairstyles associated with Black people, courts have not found discrimination. Similarly, race-neutral policies restricting “unkempt” or “messy” hairstyles have generally gained approval from the courts.

For the most part, in order to prevail, a plaintiff had to show that they were specifically targeted in some way, or that the employer’s policy was not applied neutrally.  In other words, employees had to demonstrate that the employer’s defense – that the employee failed to comply with a race-neutral employee grooming policy – was pretextual and that the employer’s true motive was discriminatory.  Proving pretext can be extremely difficult, which explains why most employers have succeeded when their grooming policies have been challenged as racially discriminatory.

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