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White Employee Wins Racial-Discrimination Lawsuit

Racist emails, gender discrimination and unlawful terminations—read about these and other recent court rulings.


Race Discrimination

White supervisor fired for racial email has valid discrimination case over unequal discipline. A white supervisor received and then forwarded to others in the company a racial email titled "Why There Are No Black NASCAR Drivers." It contained a series of derogatory stereotypes of Blacks. The supervisor was fired for violating the company's anti-harassment and improper-computer-use policies. He sued under Title VII, claiming that the discharge was racially discriminatory. The court agreed that he had a valid case because, in the same time frame, several Black employees had been using company email to circulate "How to Dance Like a White Guy!" It contained a series of derogatory terms and stereotyped characterizations of white men. However, these employees only received short-term suspensions for violation of the harassment and computer policies. There was an appearance of racial disparity in the issuing of discipline for virtually the same infraction. Smith v. Lockheed-Martin Corp. (11th Cir., 2011).

EEOC ordered to pay employer's legal fees because of frivolous case. The EEOC mounted a nationwide class-action lawsuit alleging that a large employer had a hiring policy with an adverse impact on Blacks. The alleged policy involved improper consideration of arrest-conviction records. However, during the discovery process, the company provided clear evidence that no such policy existed, and it had actually hired a large percentage of the people the EEOC accused it of rejecting. Nonetheless, the EEOC continued to pursue the case for two more years, requiring the company to expend great sums on the defense. The court ruled that the EEOC should pay all those costs and fees from the point it clearly should have known its case was without foundation, and the continuation of the case from that point was frivolous EEOC v. Peoplemark, Inc. (W.D. Michigan, 2011).

Sex Discrimination

No policy/no training dooms company to liability. A male ironworker won a Title VII gender-stereotyping harassment case. The supervisor on a bridge-construction project thought the employee acted too "feminine" and not "rough enough for an ironworker." He then engaged in a series of abusive comments and sexual taunts and exposed himself to the worker. When the employee complained, the company transferred him to a lower-paying job that was slated for layoff—and then laid him off. The company had no policy prohibiting harassment and had given no training to its supervisors regarding their duty to prevent harassment. A jury gave a half-million-dollar verdict to the ironworker. EEOC v. Boh Brothers Construction Co. (E.D. Louisiana, 2011).

Female concrete tester promoted more slowly than all men. A federal concrete- and soil-testing technician was hired first, yet promoted only after virtually all of the later-hired male technicians. She filed suit under the Equal Pay Act. The U.S. Bureau of Reclamation claimed that she had performance problems that delayed her advancement; however, it presented no tangible evidence to back that claim, and the court found the defense to be suspicious and found a valid cause of action for unequal pay because of gender-based slow promotion. Lee v. Salazan (D. Utah, 2011).

Destruction of interview notes sinks case. "Spoilation" is the term for destruction or alteration of evidence. Spoilation results in courts assessing penalties or even precluding the party from presentation of evidence at all because of a presumption that if some is spoiled, then all of it is suspect. In Talavera v. Shah (USAID) (D.C. Cir., 2011), a federal employee with excellent evaluations alleged she was passed over for promotion and filed a Title VII case. She also alleged that this was because of her complaint about sexual harassment by a contractor. The department claimed the promotion was based on another candidate's "superior" interview performance. However, the interviewing supervisor destroyed all interview notes. The court concluded that it was reasonable to infer the destruction was done to hide evidence of either discrimination or pretext, which would undermine the department's defense.

Disability Discrimination

Restaurant manager shows evidence that discharge was pretext. A restaurant manager informed the company that he had a brain tumor and would eventually need a several-month leave of absence. Three days later, he was fired for having improperly altered the time and pay records of employees. He sued under the Americans with Disabilities Act (ADA). The court found that the termination was suspiciously close to the company learning of the disability. Further, several employees testified that their records had, in fact, not been changed and were accurate. The court found evidence of pretext in the reason given for firing the restaurant manager. Meinelt v. P.F. Chang's China Bistro, Inc. (S.D. Texas, 2011).

Car salesperson did not request reasonable accommodation. A salesman at an auto dealership took leave for a heart condition. He then provided no information about his expected date of return. He made no contact at all. After 15 weeks, his employment was terminated. He then sued under the ADA. He claimed that sales positions are high turnover, and he "didn't think it would be of any concern" for the dealership if he was out for a while. The court dismissed the case. A person with a disability has an obligation to keep the employer informed and to actively request an accommodation, such as leave of absence. An indefinite leave without information about an expected return date is not reasonable. Jacoby v. Bethlehem Suburban Motor Sales (E.D. Pennsylvania, 2011).

Bridge worker's fear of heights is valid disability. A bridge worker's acrophobia resulted in a "no work over 25 feet high" restriction. He was terminated because of failure to meet essential functions of the job. However, a court found that his particular job mostly involved ground work. Further, the employer had a history of swapping duties depending on the strength and weakness of the employee assigned to a job. The employee's accommodation request was met with a supervisor's statement, "I'll tell you right now we don't grant requests!" The court found evidence of failure to engage in the required interactive process and insufficient foundation to show an undue hardship to deny the accommodation request. Miller v. Illinois Dept. of Transportation (7th Cir., 2011).

Firefighting is an essential function for fire-department job. This would seem to be a logical conclusion. However, a fire investigator's primary work is usually after the fire is over and cold. Because of a heart condition, the investigator could not engage in the high-intensity physical and emotional stress of active fire suppression and requested the accommodation of not being required to do so. The department declined the request. The employee took early retirement and then sued under the ADA. The court ruled for the department. Because of budget cuts, the department had a lean staff and all firefighting-qualified employees had to be able to fill in for short staffing or for multiple fire situations. There was no operational latitude for a firefighter-qualified person who could not engage in that duty when needed. Cremeens v. City of Montgomery (11th Cir., 2011).

Regular, predictable attendance is an essential function. A teleservice employee with serious food allergies that triggered without notice had frequent, unpredictable absences. He requested a flexible schedule in which he would not be required to have consistent attendance. The employer declined, informing him that his repeated absences were seriously harming the mission of his position. He sued under the Rehabilitation Act. The court ruled for the employer, finding that for that position, regular attendance was an essential function; "attending whenever able" and ongoing absence without prior notice was not reasonable. Lang v. Social Security Administration (S.D. California, 2011).

Bob Gregg, a partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

The Conversation

New Comedy Series is Based on the Life of a Gay Man With Cerebral Palsy

The series is written by and starring Ryan O'Connell, author of "I'm Special: And Other Lies We tell Ourselves."

Ryan O'Connell/ YOUTUBE

With "The Big Bang Theory" winding down, Jim Parsons, better known as "Sheldon," is taking a role behind the scenes as the executive producer of the new series "Special."

The show, set to debut on Netflix on April 12, is loosely based on the upbringing and experience of Ryan O'Connell, a gay man living with cerebral palsy. O'Connell authored a 2015 book called "I'm Special: And Other Lies We tell Ourselves."

O'Connell stars in the series, along with Jessica Hecht, Punam Patel, Marla Mindelle, Augustus Prew and Patrick Fabian. He also wrote the show and will executive produce with Parsons, Eric Norsoph and Todd Spiewak.

Both Parsons and O'Connell took to social media to celebrate:

O'Connell tweeted:

O'Connell has a long resume filled with stints on some prominent writing teams. He has written for MTV's "Awkward" and the reboot of "Will and Grace."

At this time, being gay is more acceptable than having cerebral palsy, he said.

"Being gay is chic now," he told NBC Out. "Cerebral palsy will never be chic."

But, hopefully "Special" will make being disabled cool just like "The Big Bang Theory" made being a nerd cool.

O'Connell has never been politically correct about his disability referring to himself as a "gimp."

"Honey, I've walked in these orthotics for 29 years. I own the f—ing right to say 'gimp,'" O'Connell said.

O'Connell's disability affects his fine motor skills and causes his muscles to be stiff.

Having a disability when you are gay is difficult, according to O'Connell. He used to refuse to go to the bathroom when he was on a date in fear that his date would notice his limp. He would avoid walking in front of people and eventually took to drugs as a way to cope with his disability.

"I had the choice to turn [my disability] into this big giant monster, or it could be this ant on the ground that I saw with a magnifying glass. And I chose to make it into a big monster," he said.

He has made that big monster morph into his ticket to stardom as he will be the main character in "Special."

Through this show, O'Connell hopes to give the unheard a voice.

Viola Davis Stands Up for Black Women in Speech

"I was tired of seeing movies without me in it and I don't mean me—Viola—I mean, me, as a Black woman."

TWITTER

After winning a leadership award this week, Viola Davis used her time on stage to speak her mind, and she brought her A game. Not often are Black women given a platform. We usually take it, or create it for ourselves and for others. A video clip of her speech is going viral with more than 500,000 views.

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Using Undocumented Immigrants for ​Labor is the Norm at Trump's Golf Club

"We are tired of the abuse, the insults, the way he talks about us when he knows that we are here helping him make money," said a woman working at Trump National Golf Club.

As President Trump sends troops to the U.S.-Mexico border to "defend" (white) America against the caravans of Brown people and bar some from asylum in the U.S., the history of hiring undocumented workers at his properties in New Jersey and Florida continues to come to light.

Trump has a problem with undocumented immigrants seeking asylum, but not when they are hired to wash his clothes or make his bed.

Victorina Morales, an undocumented immigrant from Guatemala, reportedly crossed the border in 1999 and has worked at the at Trump National Golf Club in Bedminster, N.J, since 2013, The New York Times reported Thursday.

According to a spokesperson for his business organization, she would be one of tens of thousands of people to be employed by Trump, and would be terminated if she was undocumented. Sandra Diaz, 46, from Costa Rica was another.

Both Morales and Diaz, during their stints, washed the Trump family's clothes in a special detergent, made beds and dusted.

"There are many people without papers," said Ms. Diaz, who said she witnessed several people being hired whom she knew to be undocumented.

Morales was initially pleased with her job because she was paid and tipped well, often times by Trump. But her sentiments changed when he ran for president.

"I'm tired of being humiliated and treated like a stupid person," she said in Spanish during a brief interview. "We're just immigrants who don't have papers."

During his campaign in 2016, when he referred to Mexicans as rapists and criminals, he promised to mandate E-Verify, a federal tool to verify employment eligibility, and requested $23 million in his 2019 budget proposal to expand the program for nationwide use. He also bragged when a new Trump hotel opened in Washington, "We didn't have one illegal immigrant on the job."

"The president has been half-serious about stopping illegal immigration by not taking away the jobs magnet," said Roy Beck, president of NumbersUSA, a group pushing to reduce immigration. Beck said Trump has "let us down in his promise to help American workers" because he hasn't "put his shoulder behind a mandatory E-Verify bill."

Morales reports being driven to work by staff to hide the fact that she couldn't legally drive, and that after she presented fake papers for work, she was given another set of fake papers by the Trump Organization to keep her employed there.

Morales had a front row seat on the job to Trump meetings as she was cleaning his villa, even when potential cabinet members were interviewed and when he met with the White House chief of staff.

But that didn't come without experiencing verbal abuse from Trump's staff.

Her attorney Anibal Romero said in a statement Thursday that his clients were called racial epithets and threatened with deportation by a supervisor that ironically, "had employed them despite knowing their undocumented status and even provided them with forged documents."

"We are tired of the abuse, the insults, the way he talks about us when he knows that we are here helping him make money," she told the NY Times. "We sweat it out to attend to his every need and have to put up with his humiliation."

Reader Question: Do we need any more proof that he's a liar about everything?

Obama Reportedly Surprised by McCain's Eulogy Request

"We shared, for all our differences, a fidelity to something higher — the ideals for which generations of Americans and immigrants alike have fought, marched, and sacrificed," Obama said of McCain.

Former Presidents Barack Obama and George W. Bush will pay tribute to Sen. John McCain during a Saturday funeral service at the Washington National Cathedral.

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Florida Shooter Who Killed Black Man in Parking Lot Has History of Gun Threats

Michael Drejka's "Stand Your Ground" defense in the shooting of Markeis McGlockton buckles.

Trayvon Martin's killer, George Zimmerman, was acquitted, according to jurors on the basis of Florida's Stand Your Ground law. It seems the same law will not work in shooter Michael Drejka's favor.

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Central American Mother Suing Trump Says ‘I Had Seen Officers Grab Little Children by Their Hair and Throw Them into Cells’

A Guatemalan mother says that she witnessed immigrant child abuse from officers and wants her daughter returned unharmed.

REUTERS

Perla Karlili Alemengor Miranda De Velasquez is an asylum-seeking mother from Guatemala who is suing the Trump administration for the return of her daughter.

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