Job Discrimination Against Black Women: Racial Discrimination, Sex Discrimination, or Both?

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Black women sometimes face serious discrimination at work. But it can be hard to tell whether job discrimination against black women is based on their sex, their race, or both. Find out what protections are available and what the differences are between racial discrimination and sex discrimination claims.

In this blog post I will review potential job discrimination claims by African American women against their employers. I will discuss the similarities and differences between racial discrimination and sex discrimination, and explain how an employment discrimination attorney can help make the most of the claims.

Racial Discrimination and Sex Discrimination Options

Title VII of the federal Civil Rights Act protects against job discrimination based on race, sex or gender, and other inherent traits. The law makes it illegal for employers to make hiring decisions based on these traits, treat their employees differently because of them, or allow a hostile work environment to exist.

Racial discrimination claims can be based on a person’s actual or perceived race, national origin or color. It can include racial slurs, offensive or derogatory remarks, or the use of racially-offensive symbols.

Sexual discrimination claims are similar, but the behavior must be based on a person’s sex or gender identity (including transgender status). Many sex discrimination claims are based on sexual harassment . This includes unwelcome sexual advances, requests for sexual favors, or other unwanted comments or physical contact that is sexual in nature. A sexually hostile work environment can also exist when comments are made about a person’s gender, even when not specifically targeting the employee who files the claim.

Women who face wage discrimination also have the ability to file a separate claim under the Equal Pay Act. This law prohibits employers from paying men and women differently for substantially equal work. When a woman faces sex discrimination, she often has claims under both Title VII and the EPA.

Black Women Face Complicated Job Discrimination Claims

Unfortunately, black women face substantial discrimination at work and when they are looking for jobs. Research suggests that black women continue to be paid significantly less, and receive fewer employment opportunities than their white or male counterparts. But when African American women face discrimination at work, it can sometimes be hard to tell whether the bias is against their race, or their sex.

Sometimes, racial or sexual bias is obvious. When a person is forced to endure racial slurs or sexual advances, it can be clear which claims apply. But in other cases, particularly where an employer uses illegal biases to make hiring, firing, promotion, or pay decisions, it can be harder to tease apart what caused the decision.

In these cases, your employment discrimination attorney may need to gather a lot of information about your workplace to build a case against your employer for racial discrimination, sexual discrimination, or both. When direct evidence or statements aren’t available, you may need to establish your claim by demonstrating:

  • Racial or sexual trends in hiring, firing, or promotion
  • Aggregate data regarding pay and compensation by your employer
  • How your employer reacted to your internal complaints
  • Who was given the job, raise, or duties you were denied.

Raising Alternative Discrimination Claims

Sometimes all that information isn’t available right away. It may only become obvious whether discrimination was based on race or sex as the case is developed. Because of this, when an employment discrimination attorney helps a black woman file a claim for job discrimination, the complaint will often raise “alternative” discrimination claims. By listing both race and sex as a basis for illegal discrimination in her initial complaint with the Equal Employment Opportunity Commission or in federal court, a black woman can protect her right to sue, even if it isn’t yet clear which type of discrimination applies. As the case develops and an employer’s motives become clear, one or the other claim may sometimes be dropped. But in other cases, both race and sex contributed to the hostile workplace environment on the job.

Black women face complicated job discrimination issues every day. If you believe you have been singled out at work, because of either your race or your gender, the employment discrimination attorneys at Eisenberg & Baum, LLP, can help. We will review your situation and help you plan a strategy that preserves all of your claims and protects your rights. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Bass Pro Settles with EEOC for $10.5 Million on Racial Discrimination and Retaliation Claims

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For six years, the EEOC and Bass Pro Shops have been battling in court over whether the outdoor equipment retailer violated federal racial discrimination and retaliation laws. Now the parties to the Bass Pro discrimination claims have reached a $10.5 million settlement, which promises to resolve the nationwide class lawsuit that has plagued the company and its potential and former employees for years.

In this blog post I will review the Equal Employment Opportunity Commission’s (EEOC’s) settlement with Bass Pro Outdoor World under Title VII of the Civil Rights Act. I will explain what a “pattern-or-practice” lawsuit is, and how it can be used to protect employees from racial discrimination.

The EEOC’s Lawsuit Against Bass Pro Outdoor World

In 2011, the EEOC filed a complaint in federal district court claiming that Bass Pro Outdoor World, LLC, had engaged in a pattern or practice of racial discrimination against African-American and Hispanic applicants. The sporting-goods retailer has 82 stores across the country. According to the EEOC’s allegations, the hiring policies or practices used in these stores resulted in the company rejecting qualified job applicants because of their race and retaliating against employees who spoke out against the practice. The EEOC said Bass Pro had been discriminating in its hiring practices since at least November 2005, denying qualified Black and Latino / Latina applicants retail positions including:

  • Cashier
  • Sales associate
  • Team leader
  • Supervisor
  • Manager

The Complaint alleged that this pattern or practice violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race and national origin. The law also protects employees from retaliation based on their complaints and requires companies to maintain certain employment records. But the EEOC said that Bass Pro had failed on all three requirements.

What Is a Pattern-or-Practice Lawsuit?

The EEOC’s complaint against Bass Pro included “pattern-or-practice” claims that provide relief to a class of employees and applicants of the company. It can be used where a company repeatedly and regularly violates the statute (beyond isolated incidents). It can be used in cases where a company’s pattern of behavior (such as hiring one race over another) does not become apparent right away, but only by reviewing the behavior over time.

Class Action Lawsuit or Pattern-or-Practice?

The EEOC has the authority to file these pattern or practice claims directly under Title VII, rather than meeting the requirements of a formal class action lawsuit. Class actions usually must be so large that naming individual plaintiffs would be challenging. There are also other complex requirements an employment discrimination attorney must meet before one lawsuit can represent the interests of an entire class of people, many of whom may not know the case is happening until it is done. Using a pattern-or-practice lawsuit, the EEOC can file one lawsuit on behalf of groups of employees, even without meeting the class action requirements.

Time Limits for Patterns of Employment Behavior

A pattern-or-practice lawsuit also allows the EEOC to avoid certain time limits set on individual racial discrimination cases. Title VII requires a charge to be filed within 180 (or in some states 300 days) of the unlawful event. For example, if a cashier was fired because of her race, she would have to file a complaint with the EEOC and the EEOC would have to file its formal charge within approximately 6 months of the day she was fired. Because employment patterns emerge over time, there is no one date when the unlawful behavior occurred. The EEOC has taken the position that this allows it to file pattern-or-practice lawsuits going back further than 180 or 300 days, because evidence of the illegal racial discrimination wasn’t available at the time.

Limits on Damages under Pattern-of-Practice Lawsuits

The pattern-or-practice lawsuit is not without its limitations. The Civil Rights Act allows individual plaintiffs filing complaints under Section 706 to collect compensatory damages (for costs related to the illegal conduct) and punitive damages (which punish the company for its actions). But Section 707, which applies to pattern-or-practice lawsuits, doesn’t include these forms of damages. If the EEOC files its charge under 707 alone, it could be giving up the employees’ rights to certain kinds of damages available as part of a direct lawsuit.

The Bass Pro Racial Discrimination Settlement

Over the last six years, EEOC vs. Bass Pro has been litigated at the trial court and appellate court levels. An order entered on January 3, 2017, cemented the class of employees and paved the way for litigation to move forward. Then on July 26, 2017, the EEOC announced that it had settled with the retailer for $10.5 million and the promise to make changes at the store and corporate level. The funds will go to employees and applicants who were negatively affected by the store’s hiring policies and retaliatory practices.

Under the settlement, Bass Pro Outdoor World will appoint a director of diversity and inclusion, who will collaborate on hiring and reach out to potential employees in minority communities. It will also update its policies and hiring practices, train management and employees in anti-discrimination practices, and participate in minority-focused job fairs. EEOC Deputy General Counsel James Lee said in the statement:

The EEOC is pleased to have reached what the agency believes to be a fair resolution. . . . We look forward to working with Bass Pro in implementing the consent decree.

An EEOC complaint is often a necessary step for employees seeking compensation for illegal racial discrimination and retaliation. Whether a pattern-or-practice charge or a private lawsuit is best will depend on the employee’s circumstances and goals. At Eisenberg & Baum, LLP, our employment discrimination attorneys understand the options available to employees. If you have been treated differently at work or on a job interview because of your race, we can help you decide the best course of action. Contact Eisenberg & Baum, LLP, today to talk to an attorney and decide how best to protect your rights.

Dating Your Employee: When is it Sexual Harassment?

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Is dating your employee ever okay? Or is office romance always a recipe for disaster? What happens when a consensual relationship to turn into a sexual harassment problem?

In this blog post, I will discuss the case of a Colorado correctional officer whose sexual encounter with her superior escalated into alleged sexual harassment. I will explain what makes romantic advances illegal, and explain what harassed employees can do to escape the hostile work environment.

Not Every Date Is Sexual Harassment

It is not automatically illegal for a manager or supervisor to date his or her employee. Consensual relationships happen in the workplace every day. But employers and supervisors need to carefully consider the consequences before taking that first step toward asking a direct report on a date.

Sexual harassment is illegal under Title VII of the federal Civil Rights Act, as well as state laws. The law covers unwelcome sexual advances, requests for sexual favors, and other words or actions that create a hostile or offensive work environment based on a person’s sex. It also applies to retaliation if a person files a compliant internally or with the Equal Employment Opportunity Commission (EEOC).

Just because you ask a co-worker out doesn’t mean you are lining yourself up for a sexual harassment lawsuit. Isolated incidents, teasing, offhand comments and even consensual flirting are allowed under the statute. The problem is when those relations cross the line and cause serious offense.

Colorado Correctional Officer’s One Night Stand Turns Ugly

That is exactly what one female Colorado correctional officer says happened to her in a lawsuit filed recently in federal district court. According to the complaint, Leticia Cornella took a job as a corrections officer in September 2015. Soon after, she had a one-time sexual encounter with her supervisor, Scott Lancaster. After they were intimate, Cornella decided not to continue the relationship because Lancaster was her superior. According to the lawsuit, Lancaster originally agreed with her decision, but then began harassing her at work.

A couple of months after their conversation, he began making sexual advances against her. She refused him and “[h]e then stormed out of her office, enraged. He would not, he said emphatically, be ignored.” Lancaster allegedly continued to make lewd comments and gestures toward Cornella, even in front of her new husband. He retaliated against her at work, calling her a “porn queen”. Cornella requested a transfer, but instead Lancaster was transferred temporarily.

When the two ended up back in the same facility, Lancaster’s sexual harassment intensified “to the point of obsession.” As a result, Cornella began to experience anxiety and depression and was forced to take an unpaid leave of absence under the Family Medical Leave Act. When she complained to the head of the Department of Corrections, an internal investigator said there was nothing to be done because the original encounter between them was consensual. The complaint fought back against that finding, stating:

It is the rare case in which a sexual encounter between a supervisor and his or her underling leads to a stroll into a romantic sunset of marital bliss. . . . More often, the results of such an encounter leads to what has occurred in this case: misunderstood motives, unnecessary fear of reprisal and, most harmful of all, the exercise of power and dominance by a male supervisor over the future employment opportunities of a female employee.

When Dating Crosses the Line to Sexual Harassment

The difficult job of managers, supervisors, and human resource experts is to ensure that consensual dating doesn’t end in sexual harassment claims. Some businesses adopt policies against employee fraternization, hoping that prevention will shield them from the risks. Even when these policies are in place though, sexual relations outside the office can sometimes find their way into a person’s work life.

Employers and employees alike should be on the lookout for certain tell-tale signs that a relationship has gone too far and become sexual harassment:

  • Hiring decisions are based off of the existence or denial of a romantic relationship
  • Conduct escalates to a point that a reasonable person would be offended
  • Protests and complaints about the conduct are ignored or downplayed
  • The targeted employee requests a transfer or time off of work

When these things begin to happen, it becomes more likely that you have gone beyond dating your employee and may be looking at a sexual harassment claim.

What To Do If You are Sexually Harassed at Work

The fact that you once engaged in a consensual relationship doesn’t mean you have to tolerate being sexually harassed at work. If your relationship has ended or your partner’s conduct is interfering with your work you need to:

  • Make it clear at work and before witnesses that you do not welcome the advances
  • Document your objection by filing a complaint with your HR department or employer
  • Object every time the person disrespects your wish not to be harassed at work
  • Request that the person be transferred or that shifts and duties be reassigned to separate you
  • File a union grievance if your supervisor fails to respond to your complaints and requests

If your employer will not stand up against your ex-partner’s sexual harassment, you may need to take the matter to the EEOC or to the courts. The experienced sexual harassment attorneys at Eisenberg & Baum, LLP, can help you review your options and choose a strategy that protects you, your privacy, and your priorities. Don’t wait until sexual harassment is making you ill. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.