Race 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.

The post ‘I Didn’t Get the Job Because I’m Black’ appeared first on DiversityInc.

Google has removed the controversial ‘Make Me Asian’ and ‘Make Me Indian’ apps from its Google Play store—and has deleted the developer’s profile and all her other apps. The action comes after 8,452 petitioners slammed the technology giant and urged it to remove the racist apps from the Google Play store and stay true to its “Don’t be evil” motto.

Click here to view the petition.

The free apps allow Android smartphone users to edit photos by adding “humorous” stereotypes that vary by app: They can darken skin color, change eye shape to an “Asian” slant or add ethnic accessories like an American Indian headdress. “Compare the results with your friends and laugh heartily!” writes app developer KimberyDeiss. “In few taps you can transform yourself and your friends in the real Indians, using different effects and settings.”

Both apps have been downloaded between 50,000 and 100,000 times.

Although Google has a Diversity@Google section on its website and a Diversity and Inclusion Annual Report including lots of “Googley” images and anecdotes about scholarships and internships and community philanthropy, we can’t assess its commitment to diversity and inclusion. Despite annual invitations, Google has never participated in The DiversityInc Top 50 Companies for Diversity in the 13 years the survey has been in existence.

Not Racism? Google’s Hate-Speech Policy

Despite the “Make me Asian” and “Make me Indian” apps’ blatant use of offensive stereotypes, Google has refused to remove them from its Google Play store. The apps do not violate the company’s policies, Google told CNN.

Google’s hate-speech policy for developers states that it does not “allow the promotion of hatred toward groups of people based on their race or ethnic origin, religion, disability, gender, age, veteran status, or sexual orientation/gender identity.” Because the apps are not “deliberately” offensive, they do not constitute a violation.

Offensive, Yes. But Racist?

Washington, D.C.–based pastor Peter Chin, an Asian who was offended when he downloaded the app, launched the full-scale petition in reaction to Google’s inaction.

“These are nothing less than hateful and offensive stereotypes that are used to this very day to marginalize and humiliate people. They are not funny, and their use highlights a vicious double standard in the treatment of certain minority groups,” writes Chin. “Blackface is thankfully and rightfully recognized as thoroughly racist, so why in the world is “yellowface” and “redface” given a pass?”

Chin says that “by choosing to allow these apps to proliferate on their branded Google Play store, they are implicitly normalizing these characterizations.”

Now he’s urging others to flag both apps as inappropriate and to tweet the following to Google Executive Chairman Eric Schmidt: @ericschmidt Take the racist Make Me Asian and Make Me Indian apps off @googleplay NOW! #makemeasian

@ericschmidt Take the racist Make Me Asian and Make Me Indian apps off @googleplay NOW! #MakeMeAsian – Petition link: change.org/petitions/goog…

— Mesonoxian★San (@KioshStar) December 28, 2012

Additionally, users are voicing their outrage on the apps’ User Review pages: “What’s is fun for this app? I do not understand… It’s fun for white?” writes Hiro Tsukihiji. “Extremely racist app. I’m sure hipsters love this thing. I for one feel it’s racist. What will they come out with next a black face app?” writes Aaron Bollingmo.

Nonprofit organization 18 Million Rising is sponsoring a similar petition. So far, 1,700 people have signed.

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