Discrimination by Any Other Name Is Still Illegal

To please a client, one placement agency referred to Black men as "basketball players" and Black women as "chocolate cupcakes." See this and other recent discrimination court cases here.

Discrimination


Placement agency cannot hide behind code; settles case for catering to its clients' discriminatory requests. A placement agency wanted to please its clients. When clients requested preference for no older people, Blacks, Asians, Latinos, people with disabilities, etc., the agency allegedly complied. Knowing that discrimination in placement is illegal, the agency adopted euphemisms and attached them to the applications. "Hockey player" meant white man. "Basketball player" meant Black man. "Small hands" meant woman. "Chocolate cupcake" meant young Black woman. The agency settled the discrimination case for $650,000. (Some of the clients who requested the discriminatory placements are also being sued by the EEOC.) EEOC v. Area Temps (N.D. Ohio, 2010).

Age

Dumping-ground comments cannot overcome pharmacist having given dangerous medications. A 53-year-old pharmacy manager was demoted and reassigned after several incidents of store-policy violations and filling expired prescriptions. At her new assignment, other workers complained about her performance and made comments that their store seemed to be a dumping ground where the company "exiled" the old and slow. After a few months, the pharmacist again violated procedures. The computerized patient history showed that a new prescription could create a life-threatening interaction with another medication the person was taking. The computer blocked the transaction. Nevertheless, the pharmacist overrode the warning and filled the prescription. The next day the pharmacist's manager saw the transaction, consulted with the prescribing doctor, recalled the dangerous medication and fired the pharmacist. In the ensuing age-discrimination case, the court ruled that the pharmacist's own behavior and violations of patient care created an overriding, nondiscriminatory basis for the discharge, despite evidence of some age-related remarks. Lindsey v. Walgreen Co. (7th Cir., 2010).

"Too old to matter" comments create triable case. A 54-year-old director of operations for Google was terminated. He then sued for age discrimination. Much of the evidence consisted of age-related comments. The court found that these were not just "stray remarks." Instead, a decision maker, a 34-year-old executive, made ongoing remarks that the older employee was "not a cultural fit," was an "old fuddy-duddy," his "ideas were too old to matter" and he was "obsolete." Prior to discharge, the employee was "encouraged" to apply for other positions in the company rather than face discharge. However, there was evidence that the executive then sent e-mails to other managers instructing them to not consider the employee for any positions to which he might apply. Reid v. Google, Inc. (Cal. Ct. App., 2010).

Race/Retaliation

Secretary wins $200,000 for standing up to union's racial discrimination. A clerical employee for a union had 40 years of service with excellent evaluations. Then she raised a concern that a Black electrician who had passed all exams and paid union fees was removed from the union's referral list, while a white electrician who had not paid fees was put on the list and received referrals for work. After her internal complaint, the secretary then honestly provided information as a witness when the electrician filed a race-discrimination case. The union president retaliated, engaging in a campaign of unfair and unwarranted work critique and discipline, including four unjustified disciplinary actions in a single day. The actions also violated the union's own progressive discipline policy. Finally, the secretary left on a job-stress-induced disability leave. A jury awarded $200,000, mostly in punitive damages. Blue v. Int. Brotherhood of Electrical Workers - Local 159 (W.D. Wis., 2010).

Disability

Plaintiff runs afoul of the "sin exceptions." An employee of a defense contractor developed a gambling addiction. He failed to pay $30,000 in casino debts and was arrested for larceny. He failed to inform the company of the arrest, as required by company policy and government contract. When he finally came clean about the arrest and gambling issue, he was fired for failure to follow the policy. He sued for disability discrimination, claiming that major depression was his disability and gambling was a manifestation of that condition. The ADA contains exclusions for several conditions that Congress viewed as "improper or immoral." Even if they are serious mental conditions, they are specifically placed outside the ADA's requirements for reasonable accommodation or other protections. Compulsive gambling is one of these "sin exceptions." The court rejected the "gambling as a manifestation of depression" plea as an unsubstantiated effort to work around the exception. It dismissed the case. Trammell v. Raytheon Missile Systems (N.D. Ariz., 2010).

Comparative discipline. An online charter school could not show valid grounds for firing an employee soon after it learned of her bipolar diagnosis. She was fired for insubordination after several minor rule violations over three weeks. However, the court found the timing of the discharge suspicious, occurring soon after the employer learned of the disability. Further, only two other employees had been discharged and both had a longer series of much more serious infractions and were given a much greater period to correct before being fired. The plaintiff's unequal treatment in comparison with these others led to a conclusion of discrimination. Lagatta v. Penn. Cyper Charter School (W.D. Pa., 2010).

Threats and tantrums. A store manager with PTSD had a number of "meltdowns," during which she would kick store walls and repeatedly state a desire to hurt someone. She was fired for these behaviors. She sued. The court dismissed the case, finding that she was not a "qualified person with a disability." Her behaviors did not qualify her to work as a manager. Further, after the discharge, she made a claim for total disability, which was inconsistent with an ADA claim of asking for reinstatement to work.

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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