'I Didn't Get the Job Because I'm Black'

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, watchDiversity 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, readBlacks Should Not Be Satisfied With Food Stamps’: The Danger of StereotypesandNBA 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.

Latest News

Nielsen Publishes Asian American Consumer Report for Asian American and Pacific Islander Heritage Month

Originally published on nielsen.com. REPRESENTATION MATTERS Asian Americans are a driving force in the U.S., both as cultural influencers and powerful consumers. Your representation within the products and media you love begins with data. At Nielsen, we provide a cultural narrative for diverse communities through our research. Below you will…

BASF Embraces Personalization in Cosmetics

Originally posted on BASF.com  New concept answers worldwide trend for personalized care products BASF designs customizable Face and Hair Care formulations Mixing and matching of boosters allows for countless combinations More and more people consider beauty and care routines as a key to individualization and diversity. BASF is meeting the…

Dow Collaborates to Manufacture and Donate Much-Needed Respirators Through WIN Health Labs, LLC

Originally posted on Dow.com Whirlpool Corporation, Dow, and Reynolds Consumer Products Collaborate to Manufacture and Donate Much-Needed Respirators Through WIN Health Labs, LLC ·       Companies create an alternative PPE solution to quickly address diminishing supply of N95 respirators and masks for healthcare workers ·       Dow and Whirlpool Corporation donating 1,000…

KPMG LLP Introduces Dynamic, Risk-Based, Policy and Technical Framework to Help Organizations Safely Reopen Workplaces

Originally published on home.kpmg.us. New approach centers on a policy framework assessing community and individual risk supported by process and technological solutions KPMG LLP has introduced a dynamic framework to help organizations implement approaches to bring employees back to workplaces. KPMG’s framework includes a technology-enabled and data-driven assessment of COVID-19-related…

HP Inc.’s Partnership Brings Learning, Technological Materials to Underserved Students

COVID-19 has changed the way students across the U.S. are learning. “Distance learning” suddenly became a household word and nearly everyone is learning how to conduct meetings over video chat. HP Inc. (No. 43 on DiversityInc’s 2020 Top 50 Companies for Diversity) stepped up to help Title 1 and underserved school…