Boston Employment Lawyer Blog

One of the most egregious fact patterns in a race discrimination case has presented itself against NASCAR. Maurica Grant, 32-year-old black female, worked as a technical inspector from January 2005 until her termination in October 2007. During her employment, Grant was allegedly subjected to a panoply of racially hostile and offensive conduct, which included:

• Being called "Nappy Headed Mo" and "Queen Sheba" by her co-workers
  
• Being told she worked on "colored people time"
• Enduring references to the Ku Klux Klan made by one particular race official
• Being asked, "Does your workout include an urban obstacle course with a flat-screen TV on your back?"
• Being forced to work outside more often than white male officials because her supervisors believed she couldn't sunburn because she was black
• Being instructed to duck as she passed race fans in the backseat of a carpool with one race official stating, "I don't want to start a riot when these fans see a black woman in my car"
• Being told, "Keep smiling and pop your eyes out 'cause we can't see you."
• Being accused of being gay when she rejected the sexual advances of co-workers

NASCAR terminated Grant approximately two months after she complained about how she was treated. For more information, please visit the Chicago Tribune article entitled, Mauricia Grant, NASCAR.

Employees recently scored two major victories before the United States Supreme Court. Both cases involved allegations of workplace discrimination. In each case, the Supreme Court recognized an employee's right to bring claims for retaliation where reports of unlawful discrimination result in a backlash by the employer.

In Gomez-Perez v. Potter, Myrna Gómez-Pérez worked as a clerk for the United States Postal Service in Puerto Rico. During her employment, Gómez alleged that she was subject to retaliatory treatment after filing an age discrimination complaint against her supervisors under the Age Discrimination in Employment Act (ADEA). The federal district court of Puerto Rico granted summary judgment to USPS, reasoning that the United States had not waived sovereign immunity as to retaliation claims under the ADEA. Gómez appealed to the First Circuit Court of Appeals, which disagreed on the sovereign immunity issue but dismissed the retaliation on the basis that the ADEA does not recognize such claims by federal employees.

In CBOCS West, Inc. v. Humphries, Hendrick Humphries, who is African-American, worked as an associate manager at Cracker Barrel. Following his termination, Humphries filed suit based on race discrimination and retaliation under Section 1981 of the Civil Rights Act of 1866. The main issue was whether Section 1981 recognizes a claim for retaliation. While Humphries lost his case in federal district court, the Seventh Circuit Court of Appeals held that Section 1981 protects against retaliation.

In both cases, the Supreme Court refused to restrict employee rights, and affirmed the viability of workplace retaliation claims under the Age Discrimination in Employment Act and Section 1981 of the Civil Rights Act of 1866. For more information about the Supreme Court's decisions, please visit the New York Times article entitled, Justices Favor Workers in Cases of Bias Retaliation.

Employment discrimination laws prohibit adverse employment actions, such as termination or demotion, based on race, gender, religion, disability, and certain other protected categories. More recently, the courts have had to grapple with claims of "associational discrimination."

The Second Circuit's recent ruling in Holcomb v. Iona College recognized the viability of such claims. In that case, the plaintiff worked as an assistant coach of the Iona College basketball team. Iona College eventually fired Holcomb, claiming that his termination had to do with his poor job performance. Holcomb, who is white, believed that he was fired because his wife is African-American. While the district court granted summary judgment for Iona (i.e., dismissing the case), the Second Circuit remanded on appeal.

The issue before the Second Circuit was one of first impression: Can an an employer violate Title VII if it takes action against an employee because of the employee's association with a person of another race? The court rejected Iona's reasoning and answered this question in the affirmative:

We reject this restrictive reading of Title VII. The reason is simple: where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race. All the district judges in this circuit to consider the question, including the district court in this case, have reached that conclusion.

In reaching its decision, the court also noted the egregious conduct that the plaintiff endured from Iona's Director of Athletics, Richard Petriccione:

Early in his tenure as an assistant coach, Holcomb claims to have heard Petriccione say: “[E]verybody at Fordham thinks they have these good black kids, and Iona has niggers.” A year later, when several black members of the Iona Gaels were accused of stealing and selling telephone access codes, Petriccione allegedly told Holcomb that the basketball program needed to “keep [its] niggers in line.” Colleagues at Iona testified to Petriccione’s record of what might, charitably, be called racial insensitivity. Egregiously in this respect, Petriccione is said to have referred to a Nigerian employee at the Alumni Giving Office as a “jungle bunny” and an “African princess.” When that member of staff applied to his office for the position of Assistant Director of Annual Giving, he remarked: “[W]hat does she think she is coming from a hut in Africa and thinking she could apply for this job?” The most striking of the allegations against Petriccione relates directly to Holcomb and his wife. Plaintiff testified that in February 2000, he asked Petriccione whether he had received the wedding invitation that Holcomb and Gauthier had sent him. According to Holcomb, whose claim is backed up in this respect by a third party, Petriccione replied: “[Y]ou’re really going to marry that Aunt Jemima? You really are a nigger lover.”

In recognizing associational discrimination claims based on race, the Second Circuit joins the Sixth, Fifth, and Eleventh Circuits.

Both the law firms of Clifford Chance and Sullivan & Worcester find themselves defending allegations of race discrimination. According to the Wall Street Journal's law blog, Caroline Memnon, a black Haitian woman, brought suit on March 18, 2008 in the Southern District Court of New York. Memnon claims:

From inception, the CC partners failed to provide me with meaningful work. I was afforded a series of pointless reviews… where those performing the review declared that despite my obvious intelligence the practice of law "was not for someone like me."

Clifford Chance terminated Memnon in 2002 and, according to Memnon, the firm “surreptitiously ‘blackballed’ [her] within the community of New York law firms.” In early 2007, Memnon began working at Sullivan & Worcester, which terminated her employment just months in March 2007. Sullivan & Worcester is a co-defendant in the suit.

Workplace discrimination complaints by employees against private employers to the Equal Employment Opportunity Commission (EEOC) rose by 9% last year, signifying the largest annual increase since the early 1990s. The EEOC reported that complaints increased to 75,768 during the 2006 budget year, up from 75,428 in the previous year. Discrimination complaints based on race, retaliation, and sex were the most common. Below is an overview:

• Race discrimination complaints totaled 27,238; about 35.9% of all EEOC filings

• Sex discrimination complaints totaled 23,247; about 30.7% of all EEOC filings

• Retaliation complaints totaled 22,555; about 29.8% of all EEOC filings

• Handicap discrimination complaints totaled 15,625; about 20.6% of all EEOC filings

• Age discrimination complaints totaled 13,569; about 17.9% of all EEOC filings

• Sexual harassment complaints totaled 12,025; about 15% of all EEOC filings

• National origin discrimination complaints totaled 8,327; about 11% of all EEOC filings

• Religious discrimination complaints totaled 2,541; about 3.4% of all EEOC filings

(It is not uncommon for employees to suffer more than one type of discrimination, which is why the total exceeds 100%)

Age discrimination and handicap discrimination complaints recorded double-digit percentage increases. Complaints about discrimination based on pregnancy also rose by 14% to 5,587. In 2006, the EEOC was successful in recovering $274 million in compensation for employees reporting discrimination. The Washington Post reported on these figures in an article entitled, Job Discrimination Filings Rise in 2006

Reports of race discrimination rose in 2007. The Equal Employment Opportunity Commission (EEOC) registered an increase of 24% from 2006. Complaints rose from 5,646 in 2006 to 6,977 in 2007. In an article entitled, Racial harassment cases rise sharply, USA Today reveals the changing face of race discrimination:

"Nooses are more prevalent," says EEOC chair Naomi Earp. "The noose has replaced the N-word … as the choice if you want to threaten or intimidate someone."

As race discrimination continues to rise, so will lawsuits. Last week, Judge Thelton Henderson of the U.S. District Court for the Northern District of California preliminarily approved Morgan Stanley's $16 million proposed settlement for a racial-bias class action filed on behalf of 1,200 African-American and Latino brokers. In an article entitled Morgan Stanley $16 Million Race Bias Settlement Gets Prelim OK, CNN Money reported on some of the non-monetary aspects of the settlement:

Morgan Stanley agreed to settle alleged discrimination claims by setting up a $16 million settlement fund and establishing programs to boost diversity in its work force. The firm has agreed to work with industrial psychologists to develop hiring, retention and development initiatives for African-American and Latino financial advisers and broker trainees.

Merrill Lynch & Co., the largest retail brokerage house in the United States, is also facing a similar race discrimination suit from African-American brokers.

The U.S. Equal Employment Opportunity Commission (EEOC) recorded a significant win in 2007, securing a settlement of about $1.6 million on behalf of a class of nearly 700 African Americans nationwide who suffered race discrimination.

At issue was a written test used by Ford Motor Corp., Visteon Corp., Automotive Components Holdings, and the United Auto Workers of America (UAW) to select job candidates for Ford's skilled trades apprenticeship program. The test had a disproportionately negative impact on African-Americans.

As part of the settlement, the EEOC was also successful in securing non-monetary relief which, among other things, placed 55 African American test takers into the apprentice program. The settlement complements an earlier suit in 2005 brought by the EEOC against both Ford and the UAW, which was settled for $8.55 million. The most recent suit covers additional job candidates not covered in the 2005 settlement.

On December 3, 2007, the EEOC issued a new Employment Testing Fact Sheet, citing the Ford case.

The EEOC has already experienced similar success in 2008, receiving a landmark settlement of $2.5 million against Lockheed Martin in a race discrimination suit. In that case, a Black aviation electrician was persistently subjected to racial epithets and threatened with bodily harm by his White co-workers during his employment with Lockheed Martin. Click here to read more about the settlement.