Category Archives: Discrimination

Iowa Supreme Court Nixes BROAD Race-Based Class Action Against Entire State of Iowa

by ,

Friday, July 18 – Iowa Supreme CourtSupremes

In a case that was originally brought in October 2007, Plaintiffs, fourteen African-Americans, brought a class action suit against the State, including thirty-seven different executive branch departments, under the Federal Civil Rights Act and the Iowa Civil Rights Act.

In their Petition, Plaintiffs alleged that the State unlawfully and systematically discriminates against African Americans in employment. The trial court entered judgment in favor of the State because, even though the statistical evidence showed that African-Americans did not fare as well in certain pre-screening, and interview activities as did their white counterparts, the trial court found that the Plaintiffs did not meet their burden to prove discrimination.

In an 83 page opinion that reads like a social science dissertation at times, the Supreme Court affirmed the decision of the trial court, holding that Plaintiffs did not meet their burden of establishing that the underlying documents did not provide sufficient information to allow employment practices to be separated for meaningful statistical analysis, and therefore, Defendant State of Iowa was entitled to summary judgment under the Iowa Civil Rights Act.  Decision at the link, below.

http://j.st/ZTqA

Court Finds Hostile Work Environment Claims against Collection Agency Past Due, Insufficient Funds

by ,

CBE’s old, but well known, logo.

If you live in our great state, you may have heard of CBE – Credit Bureau Enterprises, Inc., a “leading” (according to them) collection agency headquartered in the state of Iowa.

It’s probably tough to work at a collection agency.  Rachel Clay, an African-american woman who started at CBE in 2005 as a front line collector, claimed it was not only tough, but illegally hostile.  In fact, Ms. Clay filed a lawsuit against CBE on March 1, 2011, claiming race discrimination, hostile work environment, retaliation, and constructive discharge.  (This was after she had resigned from CBE for personal reasons on February 5, 2008).

In support of her hostile work environment claim, Clay cited the typical laundry list of horribles, including twelve that were timely (more about that below):

• On March 12, 2007, [her] Supervisor … said that she would deny Clay’s request to make up time unless Clay completed a form that white employees had not been required to complete.
• On March 15, 2007, [her] Manager … disciplined Clay for a dress code violation. Similarly dressed white employees were not disciplined.
• At the end of March 2007, Clay complained to [her Supervisor] that her white co-workers received praise for their performance but Clay did not receive similar praise.
• On April 6, 2007, [her Supervisor] improperly altered Clay’s time log to reflect that Clay had returned late from lunch.
• In late April 2007, a co-worker told Clay, “Congratulations! Today is the day Abraham Lincoln freed the slaves. You should be happy.” [Her Manager] overheard the comment but took no action.
. . . and so on

While the details range from the benign to asinine, the trial court noted that CBE had recorded no discipline against Clay for any of these incidents.

Complaints Past Due

Above were some of the timely brought complaints.  The trial court noted that Clay had brought a number of her grievances too late, because they were outside of the applicable four-year statute of limitations.  Included were incidences where Clay alleged her white co-workers and supervisors made derogatory comments to her and other African-american employees, including:

(1) . . . in May 2006, [a] Supervisor . . . called [an] African-American Supervisor . . . a “black bitch” during an argument; (2) that [a] Supervisor . . . once told [an African-American Supervisor] to “let up on the white girls”; (3) that [a] Supervisor . . . overheard Clay’s co-worker call her a “black bitch” during a dispute, but did not report it; (4) that a Supervisor . . . referred to Clay’s hair as “nappy”; and (5) that [Clay] had knowledge that Supervisors . . . commented that “black people had nappy hair,” “black people live in the hood,” and “black people get food stamps.”

Even considering this complaints as timely, the trial court found Clay could not sustain a claim against CBE because they simply were not sufficient evidence of a hostile work environment. 

Court Finds all Plaintiff’s Claims Have Insufficient Fundsnsf-cheque

In this Friday, June 6, decision, the Eighth Circuit Court of Appeals confirmed the reasoning of the trial court.  Specifically, the Court recited the well-known precept that the Plaintiff was obligated to demonstrate the harassment affected a “term, condition, or privilege of employment.”  To do so, the harassment must have been sufficiently “severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

The Court found, simply, that Clay had insufficient proof.  As to the twelve incidents that occurred within the required timeframe, they were not sufficiently severe or pervasive to show that Clay’s work environment was offensive.  In the words of the Circuit Judges, they were “infrequent and involved low levels of severity.”

Further, Clay did not allege the environment was physically threatening, nor that the conduct was humiliating or interfered with her work.

Finally, the Court noted Clay did not support the allegations with sufficient evidence, and instead relied mostly on speculation and conjecture to show that the alleged harassment was race based.

 

“FRD” Identified by AARP as New Associational Discrimination Matter Requiring Attention

by ,
From Wikimedia under Creative Commons license

From Wikimedia under Creative Commons license

Prompted by this update from from Workforce.com today, I discovered the AARP has produced a white paper (full version at the link) from the AARP Public Policy Institute, billing itself as the “first in a series of AARP Public Policy Institute papers on issues of eldercare and the workplace.”

Titled “Protecting Family Caregivers from Employment Discrimination,” the white paper is authored by Joan C. Williams, Robin Devaux, and Patricija Petrac, from the Center for WorkLife Law, at the University of California, Hastings College of the Law and Lynn Feinberg, from the AARP Public Policy Institute.

Central to the paper is the concept of family responsibilities discrimination (“FRD”), which, again quoting the paper, “arises from the unfair treatment of workers with caregiving responsibilities, including workers caring for children, older adults, ill spouses, or other family members with disabilities.”

FRD Issues in Eldercare

While acknowledging that caregiving extends to all manner of individuals, the white paper focuses on eldercare.  It quotes some interesting statistics on the general “graying” of the american workforce, but it identifies that, while no existing law specifically covers the alleged bias against caregivers, that the following existing laws provide workers protection:

The Family and Medical Leave Act of 1993: The FMLA creates rights for eligible employees to take unpaid, job-protected leave for, e.g., caring for a parent or spouse with a “serious health condition.”  The law prohibits an employer from denying or discouraging such leave or from retaliating against anyone who requests or has taken FMLA leave.

The Americans with Disabilities Act of 1990: The ADA prohibits discrimination based on “association with” an individual with a “disability” as defined in the law, which has recently been expansively amended.  The ADA also offers protection to workers caring for individuals with disabilities.

The Rehabilitation Act of 1973:  The Rehabilitation Act was created to extend and revise the authorization of grants to States for vocational rehabilitation services, and it prohibits discrimination based on disability by the federal government, federal contractors, and recipients of federal financial assistance.  The standards used to determine employment discrimination are the same as those used in Title I of the ADA.

The Employee Retirement Income Security Act of 1974:  ERISA prohibits employers from firing or discriminating against any employee to prevent that employee from exercising his rights under any benefit plan.

Title VII of the Civil Rights Act of 1964:  This Act prohibits discrimination on the basis of race, color, religion, sex or national origin.  The white paper suggest that women caregivers, for example, may be able to allege discrimination if they have been mistreated based on gender stereotypes, like being less committed to their job than men.

The Age Discrimination in Employment Act of 1967: Prohibits discrimination against any employees 40 years of age or older.  Older working caregivers may have a basis to claim that family responsibilities trigger age discrimination in the workplace.

More importantly, the white paper identifies over 67 local municipalities in the more than 20 states with local ordinances or other laws prohibiting family responsibilities discrimination.  As employers, we should keep these on the radar, because it would appear that not only will these “associational discrimination” claims continue to be an issue, but further that at least the AARP will be pushing for more legislation on this issue in the future.

gay-flag-best-one

I received updates today that two U.S. cites have recently passed ordinances expanding anti-discrimination protection to the LGBT community.

First is San Antonio, whose City Council on September 5, 2013, passed an ordinance amending existing anti-discrimination provisions “to expand the list of protected categories to include sexual orientation, gender identity and veterans.”  Probably not a big surprise, given that San Antonio is the seventh largest city in the U.S., and this kind of thing has been going on over some 30+ years now (Wisconsin was the first state to pass gay rights legislation in 1982).

The second is a bit more surprising, or at least to me.  A similar measure passed on August 27, 2013, in Oshtemo Township, Michigan, which sports a population of just above 20,000.  Advocates speaking in favor of the ordinance stressed that there was no state or federal protections for the lesbian, gay, bisexual and transgender community and that individual faith and beliefs are important but do not excuse discrimination.