Bob Gregg, partner in Boardman Law Firm, and Cliff Bobholz, an associate,share their roundup of diversity-related legal issues. They can be reached at firstname.lastname@example.org and email@example.com, respectively.
$1.2 million for racial harassment. In Bennett v. Nucor, a jury awarded $1.2 million to six Black steel-mill employees, finding that they had been racially harassed. The case included evidence of lynching reenactments, racial slurs over the company radio system, a variety of other racial insults and the company store’s sale of items bearing the company name with the Confederate flag, which continued after the company received complaints regarding that symbol (E.D., Arkansas, 2009). The 4th Circuit Court of Appeals has also certified a class-action race-discrimination suit against Nucor at an East Coast facility.
Asians are not all alike. The 11th Circuit Court of Appeals reversed a district court’s dismissal of a Taiwanese plaintiff’s race/national-origin discrimination case. The plaintiff, a professor of Taiwanese origin, had been discharged and replaced by a person of Asian Indian origin. The district court ruled that since his replacement was also in the EEO category of “Asian-Pacific Islander,” he could show no discrimination and dismissed the case. But the Appellate Court in Chang v. Alabama Agric. and Mech. University unanimously rejected that view. National origin is clearly not an “everyone from the same continent is all alike issue”; race, too, can differ within a continent (11th Cir., 2009).
Failure to respond to request for raise is adverse action that extends statute of limitations indefinitely. Cases are beginning to be decided under the Lilly Ledbetter Fair Pay Act, which creates a “forever” statute of limitations. Once an adverse-pay action occurs, each successive pay check (or retirement account check) is a continuing violation of that action. The standard 300-day Title VII statute of limitations for filing suit is not applicable. Mikula v. Allegheny County of Pennsylvania (3rd Cir., 2009) involved an employee’s request for a pay raise. The supervisor made no response. Much later, the employee filed a sex-discrimination case alleging unequal pay. The county defended, claiming that no actual decision had been made denying any request. But the court disagreed. It ruled that a non-response to a pay-raise request is a denial and has the same no-raise effect as a formal denial; thus, it is a “compensation decision” that fits into the Ledbetter Act’s continuing violation provision.
Throwing water vs. physical contact—not similarly situated. Two employees of different ages were disciplined for an altercation, after getting into a loud and profane argument in the company restroom. The 25-year-old employee threw water on the other and was suspended; the 45-year-old employee swung, hit the water-thrower and was fired. The older worker sued for age discrimination, claiming the younger employee was treated more favorably. But in Johnson v. Interstate Brands Corp. (6th Cir., 2009), the court dismissed the case, finding the behaviors were not similarly situated. The older employee’s behavior was more serious and deserved a greater level of discipline.