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

Diversity and inclusion lacking? How can a company know if the corporate culture has given discrimination claims more of a chance legally?

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.

CNN's Don Lemon Calls Out Trump for Silence on Waffle House Shooting

Trump has not talked or tweeted about the people of color killed or the bravery of a Black man.

In the early hours of Sunday morning at a Waffle House near Nashville, a white, male domestic terrorist killed four people of color and was stopped by a Black man from killing many more. Apparently that's the type of scenario President Donald Trump and his administration choose to ignore, and Don Lemon blasted Trump for his silence.

Read More Show Less

Golf Club Calls Police on Black Women Members for Allegedly Playing Too Slow

The five women, one a local NAACP president, say it's a clear case of racial and gender discrimination.

Myneca Ojo / FACEBOOK

Five Black women, members of the Grandview Golf Club in Braddock, the oldest public golf course in York County, Pa., decided to meet on Saturday for a round of golf. The outing ended with the club co-owner, who is white, calling the police on the only Black, female players on the course because they allegedly played too slow and did not want to cancel their membership and leave.

Read More Show Less

Waffle House Shooter: White Affirmative Action Strikes Again

Blacks are disproportionately killed, while guns are given back to the Waffle House shooter, despite concerns about his mental health issues and previous violent threats.

Travis Reinking / REUTERS

The Waffle House shooter had his guns taken away and given back to him, and the question is whether or not that would've happened if Travis Reinking was Black. His father, who ultimately was given the guns back by the police, promised to keep the weapons secure and out of his son's possession, according to Southern California Public Radio's report. Both the father and the police were aware of Reinking's history of mental instability, but chose to give Reinking another chance.

Read More Show Less

Syracuse University Expels Fraternity over 'Racist, Sexist' Video

"The racist, anti-Semitic, homophobic, ableist and sexist video was part of a Theta Tau sponsored event," Chancellor Kent Syverud said.

SCREENGRAB VIA YOUTUBE, THE DAILY ORANGE

(Reuters) — Syracuse University has permanently expelled a fraternity after a video surfaced this week showing its members using racist and offensive terms in a skit the chapter said was satirical, a school official said on Saturday.

Read More Show Less

Firefighter Charged for Spitting on Black Toddler, Using the N-word Gets Job Back

It's not surprising as a Black firefighter once sued the Kansas City Fire Department for discrimination.

Terrence Jeremy Skeen, a 15-year veteran of the Kansas City Fire Department who spat on a 3-year-old Black boy and called him the n-word, has got his job back.

Read More Show Less

Three LA Fitness Employees Immediately Fired for Racism

Unlike Starbucks, LA Fitness makes the right move and terminates the employees responsible.

SCREENGRAB VIA FACEBOOK

Three employees at an LA Fitness in Secaucus, N.J., were terminated after they were accused of harassing two Black men who were simply trying to work out.

Read More Show Less