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‘I Didn’t Get the Job Because I’m Black’

6422Race Discrimination

Diversity and inclusion in the corporate culture could mean preemptive hiring is discrimination. A Black employee alleged that she was denied a promotion to a higher IT position, and a less-qualified Asian employee was selected instead. The employer’s defense was that she never applied for the position and, therefore, could not contest the decision. However, the evidence showed that the manager: knew there were only two eligible employees; knew the Black employee intended to apply; did not wait for the application deadline to expire; and directed the selection of the Asian employee and stopped the hiring process, while the application period was still open. The evidence further showed that the plaintiff rated far higher on performance factors than the person selected, and other key managers considered her “superior by a wide margin.” The court found that the employer’s defense seemed to be a pretext for racial discrimination. Calhoun v. Johnson (D.C. Cir., 2011). For best practices in recruitment, watch Diversity Recruitment Web Seminar: How to Find 1,800 Black & Latino Employees.

Race discrimination claim ruled “nonsense.” A white police applicant filed a race-discrimination case alleging that he was bumped from a hiring list, passed over, so that lower-scoring “minority” applicants could be hired. He identified two “minority” officers who were hired. The court upheld summary judgment, dismissing the case as frivolous and “nonsense.” The plaintiff’s complaint relied on hearsay and stray comments he had heard from people who were not involved in the hiring (loose rumors, conjecture and pure speculation). The actual evidence showed that: the plaintiff was not “passed over,” he was eliminated due to failing the background check; the two identified “minority” officers had been hired in a process that was long over before he even applied, and neither of them had “passed over” anyone; and finally, the bottom half of the roster that the plaintiff was on were all white (some of whom were hired), so he could not have been bumped by a “minority.” His entire case was based on conjecture, unfounded rumors and stereotypes about “affirmative action” hiring instead of evidence. Thompson v. Lansing Mich. (6th Cir., 2011). For more on stereotypes, read Blacks Should Not Be Satisfied With Food Stamps’: The Danger of Stereotypes and NBA Star John Amaechi: Hate Speech Goes Beyond N- and F-Words

Sex Discrimination

HR manager files class-action suit against Toshiba. A former HR manager has filed suit requesting certification of a class of “all females who are or have been employed by Toshiba in the United States.” The suit alleges systemic gender discrimination in compensation, promotion and terms and conditions of employment under Title VII and the Equal Pay Act. The suit seeks to cover all Toshiba subsidiaries. The plaintiff had been an HR manager for the Toshiba Nuclear Energy Corp. subsidiary Cyphers v. Toshiba American, Inc. (S.D., NY, 2011). (Whether such a large class will be certified may rest on the outcome of the pending Walmart decision by the U.S. Supreme Court.)

Trashing harassment complaint creates case. After-the-fact action does not cure the problem. A clerical employee gave a written complaint of sexual harassment to her supervisor after several verbal complaints received no action. The supervisor wadded up the complaint, threw it in the trash, pointed at the door and said, “This is total [BS]! I want you out of here and never want to see you again!” She left, assuming she was fired. However, two days later the company’s HR director learned of the incident, called the employee, informed her she was not fired and asked her to come back. She refused, claiming that she could not reasonably reenter the environment after what occurred. She sued for Title VII retaliation. The court ruled that there was a valid claim of retaliation. The supervisor’s act clearly violated Title VII. The company’s attempt to cure was too late to overcome such an overt act by the supervisor. Young-Lousee v. Graphic Packaging Int., Inc. (8th Cir., 2011).

Disability Discrimination

Is an essential function essential to the job? A shoulder injury made a UPS driver unable to do his job. He applied for several other positions he believed he could do. The company rejected him, due to essential job functions in the job descriptions requiring lifting and mobility beyond his medical limitations. However, the employee produced evidence that these functions were not actually performed in the real job. The court allowed the case to go to trial. The courts give great weight to an employer’s determination of what duties should make up a job, and the position description’s list of essential functions are a powerful defense in an ADA case. The court, though, ruled that there must be more than a hollow defense. “The employer will have to show that it actually imposes such requirements on its employees in fact and not simply on paper.” Supinski v. United Parcel Service, Inc. (3rd Cir., 2011).

Messing up president’s schedule was valid reason for discharge. A communication director had cancer. He incorrectly scheduled the organization’s president, resulting in the president missing a major, important public-relations event. The communication director was fired. He sued, claiming that he was replaced by a person without a medical condition and therefore the discharge was a prima facie case of disability discrimination. The court disagreed. It found no connection between the cancer and the discharge. A major job blunder is a valid non-discriminatory reason for discharge. McCermott v. New York City Housing Development Corp. (S.D. NY, 2011).

Bob Gregg, partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

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18 Comments

  • When I got out of the Army in 1981, after being a battalion mail clerk for 3 years and impecable service record, I took the postal exam for my town. I passed the test with a score of 98 and they awarded me 10 extra points for my military service. I thought the job was in the bag, but I got a call from the USPS, and they were hiring from a quota of black females only. DID I COMPLAIN? No, I kept looking and have been employed for 27+ years now.

    • The USPS told you they could hire you because they had to hire a black female???????
      That is total b.s. even if that was the case, they certainly wouldn’t tell you about it.

    • Did you try reapplying after the quota was filled? I’m sure you’d have managed much better than any black female once that quota was filled.They perhaps hire a limited amount of blacks and then resume hiring unlimited amounts of whites.

  • Why am I not surprise by those in authority of their actions. This seem pretty routine everywhere you go nowadays. Not only are these incidents discriminatory, but personnal on the part of those in charge.

  • Great! I love these legal updates.

  • One never knows when/if racism/discrimination is at work in an employment situation. All speculation in the world does not equal proof. I prefer to spend my energy on being the best. If I have the goods, someone will hire me. Accept the things you cannot change is my motto.

    • Ron Marlow

      “Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them, and these will continue until they are resisted with either words or blows, or with both.” – Frederick Douglass

  • It was very interesting to read of these cases and their outcomes. I twice made a verbal complaint of being referred to as a “girl” during my evaluations, but they were not recorded on the summaries. After I was unfairly fired because I was denied due process according to the employee manual, I included my objection to being called as a girl in my defense before the Administrative Law judge. The company didn’t even borher to send anyone to the hearing. I understand that my objection was a personal/cultural issue, and many female co-workers did not comprehend my objection, but I did feel that the use of the term “girl” in reference to the female workers without an equal use of “boy” to refer to the males was a form of discrimination that reflected a general gender bias.

  • Anonymous

    I love these legal updates. Thank you so much for aggregation and assessment service.

  • It’s really sad that we still have to deal with continued racism. Why can’t we all just be Americans? Why do we fight amongst ourselves just because someone maybe different. We all live in the same American House, and a House divided aganist itself will fall.

  • I commend anyone who still acknowledges that racism still factors in at the end of the day because it does. It is an innate hateful expression that many people cannot let go of from past generational prejudices and discriminatory practices. Racism is passed on from generation to generation just as ‘Old Money’ is passed on. I have done many surveys myself and have successfully got statistics that state the same findings that this blind survey or measure may have too. In one example I was sent the letter stating that I indeed was qualified in all areas KSAO’s etc..I was in fact a good match but there apparently was one candidate that beat me out on scores as there always is..just one and the rest is history. The working ranks of people are chosen by those that in theory feel that only ‘Whites’ are the more superior to do certain jobs and that ‘Blacks should be only relegated to service positions and that’s that! People are still firm believers on that note,however because of Civil Right Laws which for real are just words states that discriminatory practice is both wrong and unlawful that employers have to give each candidate the same opportunity it allows the next. This in essence is a bowl of crock and the predictors and other kinds of assessments are definitely stacked to be for the person that they want to obtain the position in the first place but they must put their best face forward so as not to let on that they are doing anything wrong or illegal!

  • Anonymous

    Despite the federal and state protections, and a lot of litigation and case law, problems continue on both sides of the equation. (Traditional discrimination, including age discrimination, and reverse discrimination). Clearly this site has a slant in favor of the view that reverse discrimination does not exist, but affirmative action and diversity hiring plans that are overly aggressive in nature, most assuredly do exist, and aggravate the problem. The most disturbing area is the consistent lack of awareness and knowledge of hiring managers and HR departments as to the true nature of the rights and duties of employer and employee (or prospect) under state and/or federal law, as enumerated in the EEOC compliance manual, and the case law. In this case, more knowledge is a good thing and people who are in a position to hire or influence hiring, promotional, performance management, discipline, or termination decisions are best served by taking time to become aware of the true status of the law, and to be diligent as to remaining up to date with the constantly changing (and/or clarifying) nature of the issues..

  • Anonymous

    These social ills (racism, sexism, etc.) impede innovation in the workplace and society. Innovation requires collaborative relations among participants. Society as whole encompasses all humanity and each individual must live out (express) their interests while on earth. For centuries racism and sexism have been exposed and researched but change has been minimal (at least appearances of change). These social ills must be addressed from a psychological viewpoint and how environment (philosophy, religion, language, culture and norms) influences the nature of human beings.
    I appreciate the legal updates.

  • Anonymous

    It never ceases to amaze me that there are those who feel so strongly that “reverse discrimination” is as big a problem as discrimination itself. There is no comparison and people who insist on believing there is are covert racists grasping at straws. Consider – XYZ corporation has 1500 employees and sets aside 10 positions for minorities – a fraction of its workforce. The foaming at the mouth self-righteousness begins when a white applicant is turned away when the company is specifically recruiting a minority. Keep in mind XYZ corporation, as does 99% of the other “EOE” employers, rarely exceeds that pat quota seeking only to comply with the law and nothing more – the same spirit of bigotry that exists in the hiring arena at large. The white applicant, when learning a minority is hired instead of himself is furious and alleges “reverse discrimination”. What is so compelling is that that applicant finds no fault with the 1490 white emloyees who got there ahead of him – only that minority fraction he believes somehow took something away that should belong to him. Sickening.- and those who believe it is “unfair” for them to be subjected to a quota system are unable to accept the logic of why it is necessary – only that they are the important factor in the equation and that affirmative action must be ended because it negatively affects them, while being unable to see that XYZ corporation is a nearly 99% white organization and were it not for federal law would be 100% white.

    It is also true that companies are not racists – its employees in positions of authority give their own bigotry free rein and it is the company that suffers the consequences. The only way discrimination in hiring would be eradicated would be for the race of all applicants to be withheld until after the hiring decision because the interview process was put in place solely to determine the race of an applicant and give an employer an opportunity to pick and choose based on race and allows bigoted employees with power to exercise their personal ignorance and hatred.

    Hatred is passed down from generaiton to generation in this country and it will be interesting, when demographics change, how those accustomed to exercising that most demoralizing trait of inhumanity,have trained their children to live with the effects of the legacy they institutionalized, and the continual disappointment, frustration and poverty it imposes.

    Racism is persecution – when it occurs in big companies, small companies or sole proprietorships is irrelevant – it is inhumane and causes despair and poverty and those who exercise it are persecutors. Whether or not there is a personal belief in God or Heaven is ialso rrelevant – the Bible states only those who are not persecutors will have everlasting life, and racists cannot hide behind racist traditions, ignorance, “company cultore” or “company policy”.

  • Anonymous

    This website does a great job exposing–and thoroughly discussing all sides of–employment issues as they affect women and minorities. Unfortunately, it is STILL true that people of color (especially women) must be “stellar” and three times as qualified to successfully compete for positions! We can’t just be “qualified”–we HAVE to be “outstanding candidates”, look relatively young, fit and friendly, AND have fantastic oratorical skills…and this “anti-immigrant” climate does not help matters in a time of economic decline. American workplaces today are reverting back to the “slavery
    and sweatshop” mentality, wherein an employer can do or say ANYthing to employees
    and employers can “fire at will.”

  • Anonymous

    “The working ranks of people are chosen by those that in theory feel that only ‘Whites’ are the more superior to do certain jobs and that ‘Blacks should be only relegated to service positions and that’s that!”

    I remember working at a law firm where the founding partners tried to talk a young, intelligent black woman out of going to law school every chance they got. I got the same impression as the above post suggests. They were okay with her being a paralegal at the firm, but tried to persuade her not to go to law school. Both their sons attended law school incidentally. Bet they didn’t try to talk them out of it.

  • I live in a small city and have a hard time getting a job due to being a female Afro-American. 99 percent of the business here in this city are filled with white people. I was told by employer after employer that they wanted someone that will “fit” in with them. That means they want someone who is white. If the government really enforce a rule that says all certain size business needs to employ certain percentage of whites and certain percent of people that are none white then we will have more diversity. Trust me, employers will pay more money to get minorities in their business if the government puts up a very steep fine every month.

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