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Fifth Circuit Finds EEOC Did Not Have Authority to Issue 2012 Criminal History Guidance

On August 6, 2019, in State of Texas v. Equal Employment Opportunity Commission, the U.S. Court of Appeals for the Fifth Circuit ruled that the Equal Employment Opportunity Commission (EEOC) overstepped its limited rulemaking and enforcement power when it issued its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. While this ruling and its related injunction are limited on their face to the State of Texas, the decision opens the door to future challenges to the validity of the EEOC Guidance by other employers, in and outside the Fifth Circuit (Louisiana, Mississippi, and Texas).

The Statement “Your People Eat Dogs” Is Enough for Racial Bias Suit, says Washington District Court Judge

On April 16, a federal judge in Washington State rejected Royal Canin USA, LLC’s (“Royal Canin”) request for summary judgement in a suit filed by an ex Chinese-American employee claiming he was subjected to racial discrimination and harassment and fired for complaining about it. As discussed below, the magnitude of these allegations do not have to be earth shattering to allow a case to proceed to trial.

Facebook Settles Claims Alleging Discriminatory Ad Targeting

On March 19, 2019, Facebook settled several lawsuits brought by the American Civil Liberties Union (ACLU), the Communications Workers of America, and various housing groups related to the placement of employment advertisements on Facebook’s website aimed at selected users based on their age or gender.

“Good Boy”: A Phrase For Your Dog, Not Your Employee

A former car salesman at Lee Partyka Chevrolet in Hamden, Connecticut, is suing the dealership claiming he lost his job after complaining about the general manager’s alleged use of the word “boy” to refer to his black employees. In his suit, plaintiff Dennis Bellamy alleges the dealership violated Title VII of the Civil Rights Act of 1964 by terminating him because he spoke up for what he perceived was a hostile work environment resulting from his general manager’s racially disparaging language.

6 Takeaways for Employers from the Starbucks Incident

The recent incident at a Philadelphia Starbucks holds valuable lessons for employers when it comes to managing and training a workforce. What was a bad situation quickly became a terrible one as the shop’s manager called the cops and had two black men arrested for trespassing when they were arguably waiting for a friend at the store.

The “People of Color” Label: Is It Time To Move The Needle (Again)?

Cindy-Ann Thomas and her guests Littler Shareholder Allan King, and author and historian Carroll “C.R.” Gibbs provide a multi-faceted examination of the label “People of Color.” In this podcast, Cindy-Ann, Allan, and C.R. address the following, head-on:

Isolated Racial Slur Triggers Hostile Work Environment Claim

One strike, you’re out?

Case Alleging That Hair Follicle Drug Testing Has Disparate Impact on African-Americans Allowed To Proceed

A municipal employer that conducted hair follicle drug testing on police officers was not entitled to summary judgment on a Title VII disparate impact claim, because a reasonable jury could conclude that an alternative to hair follicle drug testing would have met the employer’s legitimate needs, according to the United States Court of Appeals for the First Circuit.

EEOC Clarifies 'Don't Tread on Me' Gadsden Flag Ruling

Employers should prepare for the possibility that the Gadsden Flag, which shows the words "Don't Tread on Me" below a coiled rattlesnake, could be considered a racist symbol by the Equal Employment Opportunity Commission (EEOC).

Lack of Policy and Training May Lead to Employers’ Liability for Nonemployees’ Racial Bias

Most—if not all—employers are aware that federal and state laws preclude employment discrimination based upon the race or national origin of an employee, and they know that illegal activity can include both discriminatory actions and biased statements. Most employers, however, are unaware that certain of these laws also preclude discrimination by a customer, client, or patient of an employer against an employee.

Broadway's 'Hamilton' Teaches Lessons To Employers

A recent controversy over the hit Broadway show “Hamilton” can teach employers a valuable lesson about hiring and making other employment decisions. The producers of the show were accused of discriminatory hiring practices when a casting call sought “nonwhite” performers to appear for auditions. Although no legal action was initiated, the situation can offer guidance to employers regarding when (if ever) you can take protected categories such as race, national origin, age, religion, or gender into account when making personnel decisions.

Broadway’s ‘Hamilton’ Casting Call Ad Runs Afoul of Discrimination Laws

Recent publicity surrounding a casting call for the Broadway musical “Hamilton” should remind employers of the danger of using discriminatory criteria in job ads.

Beware Of The One-Two Punch Expected In The Fair Housing Law Arena

The combination of a recent unfavorable Supreme Court decision along with dramatically increased federal funding for fair housing enforcement could spell bad news. Businesses that operate in the housing industry and those businesses that provide financing and insurance coverage for the industry should be prepared for a new wave of legal challenges on the horizon.

Second Circuit Upholds Summary Judgment for Employer Dismissing Claims of Race and National Origin Discrimination and Retaliation

On Tuesday, February 17, 2015, the Second Circuit upheld Judge Margo K. Brodie’s grant of summary judgment to Owens and Minor Distribution, Inc. (O&M) in a race and national origin discrimination and retaliation case. The Second Circuit agreed with the Eastern District of New York’s decision that O&M, a distributor of medical and surgical supplies, presented a legitimate non-discriminatory and non-retaliatory reason for terminating Mr. Joseph. In its well-reasoned decision, the district court provided a helpful reminder in guiding employers through the employment cycle of an employee with performance difficulties.

Reversing Racial Discrimination Claims is Difficult, but Not Impossible

Despite the heightened scrutiny given to reverse racial discrimination claims, it is difficult but not impossible to prevail under the right circumstances.

“But You’re Not a Person of Color -- You’re Asian”

Growing up in an affluent, mostly white suburb of Detroit, I never really embraced my diversity. I knew that I was different from my schoolmates and friends, but I didn’t think much about it. Sure, I took Chinese lessons every week in Canada and had a cool mom who came in every year for show-and-tell to teach my elementary school class about Chinese traditions. Of course, I stood with far fewer classmates during a middle school exercise in which we were asked to identify different races and stand with students of similar races. And yes, I found it annoying to be constantly mistaken for my best friend (who is also Asian) or assumed to be her sister. Still, I couldn’t deny that when I was invited to participate in a “People of Color Conference” in high school, a part of me agreed with my friends, who insisted, “But you’re not a person of color—You’re Asian.” I wouldn’t say that I resisted the idea that I belonged to a minority group; I just didn’t think that being Asian really mattered that much.

June 1963 - Civil Rights Act Introduced

On June 20, 1963, what became the Civil Rights Act of 1964 was introduced as H.R. 7152, in the 1st Session of the 88th Congress. It was referred to the Judiciary Committee which was chaired by Rep. Emanual Celler (D-NY). He referred it to a sub-committee, which he also chaired.

A Doorway Stand and One Big Step Forward

On June 11, 1963, George Wallace made his famous "segregation forever" speech while standing in the door to block the integration of the University of Alabama. (Wonder what Coach Saban would think of that idea?). After President Kennedy nationalized the Alabama National Guard, Wallace stepped aside.

50 Years Ago...

In the summer of 1963, the summer between the 7th and 8th grade for me, my main concern was playing first base for Tapp's Pony League baseball team. (It was Tapp's the furniture store, not the funeral home, although I doubt that many in the small town new, or for that matter cared.) In other parts of the country, there were much more significant matters as the civil rights movement which had been building since the mid-1950's was beginning yet another significant and violent summer.

One Prediction That Had Some Legs

Forecasting is an art not a science, and truth be known luck is probably the most single important factor if one gets it right, still I could not help but think back to one of my first posts of this year, 2011 --- the Year of the Non-minority? where I thought that we might see

Patient's preference for white aides does not trump health care employer's duty to its employees to abstain from race-based work assignments.

The 7th U.S. Circuit Court of Appeals has ruled that a nursing home’s policy of complying with patients’ wishes to be treated only by white health care workers can form the basis of a racially hostile work environment for non-white employees.

Supreme Court Hears Arguments on Whether Scrapping Promotional Exam Violates Title VII.

On April 22, the U.S. Supreme Court heard oral arguments regarding the internal clash between Title VII’s disparate impact and disparate treatment provisions. Ricci v. DeStefano, U.S., No. 07-1428 (oral argument 4/22/09). The case is based upon the city of New Haven’s decision not to certify the results of two 2003 firefighter promotional exams - one for captain, and one for lieutenant – when 14 of the top 15 scores were earned by white candidates. The district court dismissed a lawsuit filed in 2004 on behalf of 17 white and one Hispanic firefighters; that decision was upheld by the 2d U.S. Circuit Court of Appeals. The case was accepted for argument by the Supreme Court, primarily to address the issue of whether the city’s decision violated Title VII and/or the 14th Amendment’s Equal Protection Clause.

Manager Fired For Violating Nonfraternization Policy Loses Appeal.

A federal appellate court recently dismissed a lawsuit brought by an African-American manager who claimed that his discharge was racially motivated because he dated (and subsequently married) a white hourly employee. According to the court, the worker failed to establish a prima facie case of race discrimination, and even if he could, there was no evidence that the company's explanation for his discharge was a pretext for unlawful bias.

Tenth Circuit Finds No Pretext In Hospital's Assertion That Disruptive Physician's Privileges Should Be Terminated.

Healthcare entities continue to monitor federal court decisions related to the relationship between hospitals and credentialed physicians to determine whether hospital bylaws are being viewed by the courts as contracts with the doctors. Recently, however, the 10th U.S. Circuit Court of Appeals side-stepped the “contract” issue while addressing a race discrimination claim brought by a doctor against a hospital. Instead, it analyzed the case under the typical burden shifting framework generally applicable in federal discrimination cases. Under that analysis, the physician failed to show that race was a motivating factor in the hospital’s decision to terminate his privileges there, and his case was dismissed.

The EEOC's E-RACE Initiative.

In February, the Equal Employment Opportunity Commission (EEOC) launched its "E-RACE" (Eradicating Racism and Colorism from Employment) Initiative. The E-RACE Initiative is designed to improve the EEOC's efforts to free the workplace of race and color discrimination. The EEOC intends to identify issues, criteria and barriers that contribute to race and color discrimination, explore strategies to improve the administrative processing and litigation of race and color discrimination claims, and enhance public awareness of race and color discrimination in employment.
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