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One Fair Wage Says Darden Restaurants’ Tips Policy Caused Racial and Gender Discrimination

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Can working on tips perpetuate racial or gender discrimination at work? The advocacy group One Fair Wage has filed a lawsuit against industry giant Darden Restaurants arguing that the company’s tips policy caused racial discrimination and sexual harassment by its customers to go unchecked.

Olive Garden Parent Company Comes Under Fire for Discrimination

On April 15, 2021, the non-profit advocacy group One Fair Wage (OFW) filed a discrimination lawsuit against Darden Restaurants, the parent company for popular chains like Olive Garden, LongHorn Steakhouse, and Capital Grille. Darden Restaurant Group owns and controls more than 1,800 chain restaurants, employing 175,000 workers, including thousands who work on tips.

The lawsuit, filed in California’s federal district court, followed on the heels of four separate complaints at the Equal Employment Opportunity Commission (EEOC) on behalf of employees in New York, Washington DC, and California last September. It said that the company’s policies — specifically those related to tipped wages — exposed workers to sexual harassment and racial bias.

One Fair Wage Says Tipping Policy Perpetuated Discrimination

The lawsuit was based on alleged violations of Title VII of the federal Civil Rights Act of 1964, but not necessarily in the way you might expect. The complaint said that Darden’s restaurants used a “subminimum wage” tip policy that caused women and employees of color to be paid less than their white male counterparts. Pam Araiza, a Latina employee in Darden restaurants from 2007 until 2020, is one of the plaintiffs in the lawsuit. She says she was consistently discriminated against and assigned to sections of the restaurant known to generate less in tips:

“Darden pays some of the lowest wages, $2.83 an hour in 40 states. Guests are expected to make up the difference. . . . Managers, hostesses and co-workers have the power to impact your earnings based on tables you are given, deliberately profiling guests based on spending history tied to previous dining, using stereotypes and race as a decision of where they want to put guests. How much you are liked or how you look factors into what you get as well.”

Saru Jayaraman, president and co-founder of One Fair Wage said in a press conference that as the largest member of the National Restaurant Association lobbying group, Darden was responsible for keeping tipped workers’ wages “as inhumanely low as possible.” The complaint alleged:

In addition, the complaint raises concerns about sexual harassment at Darden-owned restaurants. Sexual harassment is rampant in the food industry. According to OFW’s poll of Darden workers, nearly 40% had faced racial or gender discrimination or offensive behavior by a co-worker, manager, or customer. The mandatory subminimum wage policies leave managers little incentive to investigate or respond to sexual harassment claims at work.

When most of an employee’s income is derived from tips, raising concerns about a customer’s treatment means reaching into your own pocket to protect your dignity. With the subminimum wage policies in place at Darden restaurants, many employees can’t afford to stand up for their rights.

Is Darden Restaurant Responsible for Following Federal Tipped Wage Laws?

Still the question remains whether the tipping wage policy in place at Olive Gardens, LongHorn Steakhouses, and other restaurants across the country can truly have created the discrimination alleged by One Fair Wage. The federal Fair Labor Standards Act sets the minimum wage for tipped workers at $2.13 per hour. Employers only have to make up the difference if employees’ tips and their wages add up to less than $7.25 per hour, the normal minimum wage for hourly workers nationwide. Some states have higher minimum wage and tipped wage laws.

Darden’s policy requires that tipped workers be paid the lowest hourly wage allowed by local law. Restaurant managers have no discretion to increase an employee’s wages. One Fair Wage says:

“When a company adopts wage policies or practices like these that result in disparate, negative impacts on the basis of sex and race, and there is no business necessity for  doing so, it engages in illegal employment discrimination under federal law.”

The advocacy group and others like it have been lobbying for increased wages nationwide for years. Together with the Restaurant Opportunities Center, OFW has successfully pushed several states to eliminate tipped wages altogether. Now OFW has taken one of the industry’s heaviest hitters to court to put pressure on restaurant groups to do better by their workers. They argue that Darden Restaurants could have mitigated sexual harassment and racial disparities in tipping by creating pooling tips among restaurant employees or charging customers a standard service fee, rather than allowing them to set their own tips according to  “capricious and emotional” unconscious biases.

Darden Restaurants defended its policy, saying it was following federal and state laws. Rich Jeffers, Senior Communications Director for the restaurant group called Darden “the employer of choice” and boasted a nationwide average tipped wage of more than $20 per hour. However, this is in large part a result of the work of advocacy groups like OFW to raise wage minimums at the state level. The question of whether the company’s tipped wage policy can result in a Title VII violation for race and gender discrimination may be a novel theory to get workers the help they need to be paid fairly, or it may end up being little more than another step in the advocacy group’s lobbying efforts.

At Eisenberg & Baum, LLP, our employment discrimination attorneys know how unfair wages can create and perpetuate racial discrimination and sexual harassment at work. If your company isn’t compensating you fairly, or if you are being discriminated against in your shifts or assigned duties, we can help you protect your rights at the EEOC, and in state or federal court. We will meet with you and review your options to get paid fairly for your work. Contact us today to schedule a free consultation.

Oregon Sued After Setting Aside $62M of COVID Relief Funds for Black Business Owners

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The Oregon legislature set aside millions of dollars of federal COVID-19 relief funding specifically for Black-owned businesses. For Black business owners, this was an acknowledgment of both a history of racial discrimination and the fact that the coronavirus disproportionately affected that community. But others are questioning whether the earmarked funds were themselves a form of discrimination. The resulting lawsuits have tied up $8.8 million that would otherwise be keeping small businesses open and their employees paid.

The Oregon Cares Act Earmarks Funds for Black Businesses

Business owners across the country know how much of a scramble it has been to claim their share of the federal government’s COVID relief funds. That money passed through the state governments and each state’s legislature had a chance to determine how that money would be distributed.

In the Northwest, that took the form of the Oregon Cares Act. The legislation earmarked $62 million of the $1.4 billion the state received in Coronavirus relief funds specifically for grants to Black residents, business owners, and community organizations.

The step came in the wake of data showing that the coronavirus was disproportionately affecting and killing people of color. An open letter to the state legislature, signed by several advocacy groups and legislators, said:

“Black, brown, and Indigenous communities have always been denied the resources we need to be healthy. So, it is absolutely predictable that we are the communities hit hardest by COVID-19—and not just by the virus itself. Nationally, we also know that the CARES Act has already left Black communities behind.”

The letter advocated for targeted investment in the Black community that would recognize and respond to those disproportionate impacts. The Oregon Cares Act did just that.

White and Mexican Business Owners Claim Racial Discrimination

While those who signed the letter found this earmarking necessary, others said it was just another type of racial discrimination. Two lawsuits have been filed claiming that the Oregon Cares Fund was illegal discrimination — treating Black business owners differently because of their race.

The first lawsuit was brought by a white owner of a logging company in John Day called Great Northern Resources. He was later joined by another white business owner of Dynamic Service Fire and Security, an electrical company in Salem. One plaintiff says that even after borrowing $20,000 from the Paycheck Protection Program, he was on the verge of laying off employees unless he got access to the Cares Act funds. The arguments in that lawsuit fall into what is commonly called “reverse discrimination” when a program puts white people at a disadvantage.

The second lawsuit was brought by a Mexican-American woman who owns Revolucion Coffee House in Portland. She posted on social media:

“This lawsuit is not anti-black or anti-Latino. . . . This is not a fight about who is more or less qualified, but a kitchen for our elected officials that the state has to be involved in all its decisions and provide equal opportunities to use the money.”

COVID Relief Becomes the Next Battleground for Affirmative Action Cases

Both lawsuits have found backing from conservative legal advocacy groups. The Great Northern Resources lawsuit is backed by Project on Fair Representation, which has also challenged race-based admissions policies at universities like Harvard. These COVID relief lawsuits provide a new outlet for those who would argue that any decision based on race should be illegal.

The U.S. Supreme Court has said that it isn’t quite that absolute. The government, including a state legislature or school board, is allowed to make race-based distinctions, but only when they are based on a “compelling government interest” and “narrowly tailored” to meet that need. Historically, this has included making up for past racial discrimination. However, more recent court opinions have put less emphasis on this and more attention on other compelling interests including diversity and inclusion.

Lawsuits Tie Up Millions in COVID-19 Relief Funds

The one thing that everyone on both sides of this argument agrees on is that this money needs to go to the businesses struggling to stay open throughout the pandemic. But the nature of prolonged litigation could mean the lawsuits do just the opposite. Rather than giving access to more money, the lawsuits are, at least temporarily, reducing the amount of money in the pot. In response to the lawsuits, the backers of the Oregon Cares Fund said in a statement:

“Pending clarity from the court on the matter of the class, we have decided to temporarily move the remaining $8.8 million in the Fund to the court. . . . We will make the case that supporting Black Oregonians does not automatically mean that everyone else is harmed. That idea is only perpetuating the problem of race in America today.”

No matter how these lawsuits resolve, they will necessarily delay putting money in the hands of business owners, Black or otherwise, who need it most.

At Eisenberg & Baum, LLP, our discrimination attorneys understand the complicated issues behind racial discrimination, for and against Black business owners. If you believe Affirmative Action has improperly worked against you, racial discrimination is making growing your business more difficult, we can help you review your options and protect your rights. Contact Eisenberg & Baum, LLP, today to talk to a discrimination attorney.

Kansas City Black Firefighters’ Decades-Long Battle Against Racial Discrimination

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For black firefighters in many of Kansas City’s most desireable stations, racial slurs and even physical violence are part of the job. But after decades of lodging racial discrimination complaints, and even many settled lawsuits, the “old white boys club” resists letting the neighborhoods’ firefighters reflect their community.

Kansas City Firefighters Case Highlights Racism in the Firehouse

The racism against Kansas City firefighter Eric Sanders started on day one. The newly assigned staff member brought doughnuts to break the ice, but they were thrown away uneaten. The next year was miserable for Sanders. The white firefighters he was assigned to work with kept him from sitting with them during meals, ridiculed him in front of his coworkers, and used the n-word as part of their casual conversation. One white firefighter testified during a deposition:

“[They] didn’t want n****ers working there, and they thought that n****ers were lazy.”

The racial discrimination continued even after an internal investigation supported his complaint about racial slurs. Sanders had intended to retire with the Fire Department, but after just under a year he had had enough. Describing his working environment as “pure hell”, Sanders was forced to quit. He hired an employment discrimination attorney and sued the department for racial discrimination, harassment, and retaliation.

Black Firefighters Have Been Battling Racial Discrimination for Decades

Sanders is far from alone in his story. Over the years, a number of black firefighters have sued the Kansas City Fire Department for discriminatory practices. Sanders’ case resulted in a $300,000 jury verdict in 2014. Tarshish “T.J.” Jones sued the department for being passed over for promotion six times because of his race. In 2018, Clinton Ragan sued for wage discrimination against himself and other Black firefighters. That same year, Deputy Chief James Garrett settled his own lawsuit for $111,000 after being denied a promotion to fire chief.

In 2019, Sean Tiller filed a complaint after a white colleague, Joshua Alt punched him in the face and bit him. In the internal investigation that followed, Alt was represented by the firefighters’ union. Tiller was not. In April 2020, the City Council approved another $400,000 settlement for firefighter Kevin Hunt, who was denied a promotion to deputy chief.

Report Finds Systemic Firefighter Discrimination in Shifts, Station Assignments

The firefighter discrimination cases give a glimpse into something the Kansas City Star newspaper says is a systemic pattern across the city. A report they published in December 2020 shows that some of the city’s most desirable station assignments are located in racially diverse communities. Station 35, which has a 90% percent Black neighborhood has only 1 black firefighter on the staff. Next door, at the less desirable Station 29, seven of the 13 firefighters are black. Station 23, in a historic and ethnically diverse part of town also has only 1 non-white firefighter. Of the 193 workers over the last ten years, only 3 were black. Because of the dense population around these stations, there are more fires, which leads to more experience, and faster promotions for the firefighters assigned there. These positions were given overwhelmingly to white men.

What to Do When Racial Discrimination is a Way of Doing Business

Kansas City now has a new fire chief, Donna Lake, the first woman in the position. She says the department takes its responsibility to treat all employees fairly seriously. However, it will take time, money, training, and strict enforcement to change a workplace culture where the n-word was part of everyday speech and black firefighters were routinely passed over for high-quality station assignments and promotions.

When racial discrimination is par for the course, it often takes a coordinated effort by several employees to enforce the kind of systemic change needed to shift company culture. While an employer or government agency may be willing to pay settlements to individual employees, the price tag that comes with a coordinated or class action can get more attention, and put pressure on those in charge to make real changes.

At Eisenberg & Baum, we know how hard it can be to overcome decades of racial discrimination. Our employment discrimination attorneys, can help employees file their claims under Title VII and state civil rights laws individually, or as part of a larger class. We will push for system-wide changes, even in workplaces with decades-long histories of harassment. If you have been the victim racial discrimination, contact us. We’ll meet with you and help create a strategy that protects you and your coworkers against ongoing racial bias and poor treatment.

Black Women Face Gender and Racial Discrimination in Pinterest Careers

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Pinterest careers are often seen as a kinder, gentler social media start up. But according to a pair of black women who publicly resigned from the company in May 2020, the company’s public face hides a corporate culture of gender and racial discrimination that forced them out of the company and into filing a complaint with their state’s Department of Fair Employment and Housing.

Pinterest’s Public Perception of Positive Diversity

Among social media startup companies, it is hard to find one with a better reputation than Pinterest. The company was started by a tech industry outsider from Iowa and is known for having etiquette policies like, “Be Nice.” At one point, co-founder Evan Sharp said that the company liked to hire “geniuses that are nice to each other.”

Much of the company’s reputation for supporting diversity was a result of the work of the company’s 3-person policy team, which included Ifeoma Ozoma and Aerica Shimizu Banks. The team was responsible for the company’s decision to stop promoting content about slave plantation weddings and anti-vaccination theories, as well as reinstating holiday pay for Pinterest contractors.

Policy Team Cancels Their Pinterest Careers Over Discrimination Complaints

But behind closed doors, Pinterest employees face the same problems as other women in tech. In May 2020, Ozomo and Banks, both black women, publicly terminated their Pinterest careers on Twitter, posting that they were underpaid and faced gender and racial discrimination at work. Ozomo, Banks, and several other anonymous Pinterest employees told the Washington Post that the reality inside the company was very different from the public face. Ozoma told the Washington Post:

“On the one hand, Pinterest was fine with me being the person interviewed on ‘All Things Considered,’ the person who’s doing press all around the world on behalf of the company for an initiative I’m leading,” Ozoma said. “And on the other hand, they just completely did not believe that I had enough sense and enough ability, both financially and otherwise,” to keep pursuing her bias claims, which she felt Pinterest had shrugged off.

One black woman was told to stop speaking at meetings, only to watch her manager use her presentations to speak to clients in her place. The only black person on her team, she told the newspaper that an executive joked that she should act as “the servant” and “serve” her co-workers during a team dinner. She said:

“Everyone knew it was wrong, but nobody said anything in that moment.”

When the black women employees raised these issues with HR, they were made to feel imcompetent and faced retaliation. Under the guise of investigating gender and racial discrimination complaints, Pinterest hired outside investigators to dig into ways to blame the victim.

For example, in June 2019, Ozoma’s personal details were published on extremist forums such as 8chan and 4chan after Ozomo suggested creating advisory warnings around “white supremacist” statements by conservative news personality Ben Shapiro. A coworker leaked her personal information to these social media groups that organize harassment campaigns. But when Ozomo went to Pinterest’s legal department for help, the company asked a third-party company to research whether Shapiro actually was a white supremacist — questioning the validity of her claims instead of ensuring she was safe from harassment at work.

Discrimination in Tech Tied to Monoculture in Recruitment

In response to Ozomo’s and Adams’s Twitter announcement, Pinterest chief executive Ben Silbermann issued a note to his staff saying:

“What I’ve learned over the past few weeks is that parts of our culture are broken. Truthfully, I didn’t understand just how much work we have to do. That’s not an excuse, that’s a failure in leadership, and I’m truly sorry for letting you down. I’m grateful that so many of you had the courage to share your experiences honestly and openly. . . .

“It’s been devastating to hear the stories of Black employees who feel like they don’t belong at Pinterest. . . . I’m embarrassed to say that I didn’t understand the depth of the hardship and hurt many of our team members have experienced. I need to do better. My leaders need to do better. And Pinterest needs to be better.”

Silbermann’s letter acknowledged that gender and racial discrimination can persist even in companies with anti-discrimination policies if workers are afraid of bringing their concerns forward. He also acknowledged a lack of diversity at the highest levels of the company. Michelle Kim, a diversity expert who hosts workshops for tech companies, including Pinterest told the Washington Post:

“Unfortunately, this is not just a Pinterest problem. Every tech company I know has stories of anti-Black racism and bias.”

In part, this is due to the tech industry’s “monoculture”, a system where white and Asian men are put into positions of power and then tend to hire people from within their networks, who tend to also be white and Asian men, who hire people from within their networks, and so on. This creates a homogenous employee group where women and minorities are underrepresented and feel out of place, even when they have excellent credentials. It isn’t that there is a lack of talent among diverse populations. For example, Ozoma and Banks had resumes including work at Google, Facebook, and the White House, as well as degrees from Oxford and Yale. However, when it comes to hiring and promoting black women and other minorities, those credentials often take a back seat to questions of “culture” and “fit” that perpetuate white male dominance within the industry.

Silbermann has promised further changes in Pinterest careers, including a comprehensive review of employee compensation and evaluations, and senior-level and board-member recruitment. However, if Ozoma’s and Banks’s circumstances show anything, it is that policies aren’t enough. Without robust internal enforcement, gender and racial discrimination will continue to thrive, and employees who face harassment and discrimination will still need to resort to employment discrimination complaints to protect themselves and their rights.

At Eisenberg & Baum, LLP, our employment discrimination attorneys know that policies on paper aren’t enough to protect black women from gender and racial discrimination at work. If you work in tech or another male-dominated industry and have been treated poorly by your managers and your company, we can help. We will meet with you and review your options to get you compensation for the harm you have suffered. Contact us today to schedule a free consultation.

Discrimination Concerns Raised by DOJ for Yale’s College Application Process

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The Trump Administration’s Department of Justice has had its eye on Affirmative Action policies used at Ivy League colleges for years. Now, while a private lawsuit against Harvard goes up on appeal, the DOJ has turned its attention to Yale University, and what it calls racial discrimination against Asian Americans and white applicants in the college application process.

Yale University Targeted for Application Discrimination by DOJ

On August 13, 2020, the U.S. Department of Justice announced it had found that Yale University illegally discriminated against Asian-American and white applicants in its undergraduate college application process. The press release included this statement:

“There is no such thing as a nice form of race discrimination,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division. “Unlawfully dividing Americans into racial and ethnic blocs fosters stereotypes, bitterness, and division. It is past time for American institutions to recognize that all people should be treated with decency and respect and without unlawful regard to the color of their skin.”

The notice targeted Yale’s Affirmative Action policies that are designed to lift up racial minorities. These students are often at a disadvantage when applying to elite colleges and universities because of reduced access to educational opportunities in their communities, and the lower standardized test scores that result. The notice demanded that Yale not use race or national origin in its 2020-2021 undergraduate admissions cycle, and then submit a plan for future college admissions processes showing how it would narrowly tailor the use of race, and identify a date for ending its use entirely.

Yale Responds Saying Admissions Policies Promote Diversity on Campus

It appears Yale has no intention of complying with the DOJ’s demands. It issued a statement saying that its applications process looks at the “whole person”, considering academic achievement, interests, leadership, and “the likelihood that they will contribute to the Yale community and the world.” Peter Salovey, Yale’s president, told the New York Times:

“The department’s allegation is baseless. . . . At this unique moment in our history, when so much attention properly is being paid to issues of race, Yale will not waver in its commitment to educating a student body whose diversity is a mark of its excellence.”

The notice also demonstrates the Department of Justice’s shift on how it views diversity and racial discrimination under the Trump Administration. Rachel Kleinman, senior counsel at the NAACP Legal Defense and Educational Fund said she was “shocked but not surprised” by the finding. The New York Times reported:

“This particular Department of Justice has been laser-focused on ending affirmative action,” she said, adding that she believed the department’s finding was “a foregone conclusion before they started their investigation. . . .

“They’re sticking with the analysis that any use of race is racism and insidious.”

Affirmative Action and Racial Discrimination Under Title IX

Affirmative Action and racial discrimination have come before the courts before. The U.S. Supreme Court has allowed colleges and universities to use race as one factor among many in their admissions process when the purpose was to promote diversity. However, these lawsuits have been raised under the U.S. Constitution’s 14th Amendment Equal Protection Clause.

The DOJ notice, and any lawsuit related to it, would instead be based on a violation of Title IX of the 1964 Civil Rights Act, which requires educational facilities that receive federal funding to avoid discrimination based on protected traits, including race and national origin. The federal Civil Rights Act is designed to protect students, employees, and residents from discrimination and promote fair treatment of minorities. However, the language of the law is neutral, which allows members of the majority (in this case white students) to use it when they feel they have been discriminated against in favor of minorities. This is sometimes called “reverse racism” or “reverse discrimination.” If a federal court finds that the Yale University college admissions process violated Title IX by including racial discrimination in its application process, it could require the university to change how it admits students or lose federal funding.

Harvard College Application Process, Approved by Judge, Now Up on Appeal

The timing of the notice to Yale University is also getting the attention of commentators. It came less than a month before DOJ attorneys were expected to present the same argument in a private lawsuit by Asian-American students against Harvard College. The students, represented by Students for Fair Admissions, brought their lawsuit as an Equal Protection claim.

Last year, Judge Allison D. Burroughs of the United States District Court for the District of Massachusetts, ruled in favor of the college. Her 130-page opinion said Harvard’s college application process wasn’t perfect, and could be susceptible to implicit bias by admissions staff. However, overall she found the process fair and committed to attracting applicants “who are exceptional across multiple dimensions.” Race, she said, was only ever used as a “plus” factor, not to hurt applicants.

“Although racial identity may be considered by admissions officers when they are assigning an applicant’s overall rating, including when an applicant discloses their race but does not otherwise discuss itin their application, race has no specified value in the admissions process and is never viewed as a negative attribute. Admissions officers are not supposed to, and do not intentionally, consider race in assigning ratings other than the overall rating.”

The Harvard case is currently up on appeal before the United States Court of Appeals for the First Circuit. Many commentators believe it will eventually make its way before the U.S. Supreme Court. This will give a panel of judges including at least two appointed by the Trump Administration a new opportunity to weigh in on Affirmative Action and racial discrimination. Depending on how the Yale situation progresses, it could become a hotly contested lawsuit as well, defining students’ rights in the area of application discrimination not only under the Equal Protection Clause of the Constitution, but under Title IX as well.

At Eisenberg & Baum, LLP, our discrimination attorneys understand the complex relationship between Affirmative Action and racial discrimination, both for students, and the employees of colleges and universities. If you believe Affirmative Action has improperly worked against you, we can help you review your options and protect your rights. Contact Eisenberg & Baum, LLP, today to talk to a discrimination attorney.

Asian American Essential Workers Face COVID-19 Racial Discrimination

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In New York and across America, Asian American workers are facing racial discrimination because of fear related to the novel Coronavirus COVID-19. As the response to the pandemic goes on, employers will need to step up their responses to xenophobia to protect their employees from harassment and discrimination at work.

Asian Americans Face Epidemic of Racial Discrimination Due to COVID-19 Responses

Dr. Edward Chew is the head of a large Manhattan hospital’s emergency department. Understandably, he has been busy fighting the coronavirus. However, as he works hard daily to help people survive the outbreak, he has been noticing their reactions to him have changed. They try to cover their nose and mouth with their shirts as he gets close. One time, when he went to Home Depot to buy masks, face shields, and Tyvek suits for his hospital staff, he was harassed by three men in their 20s who followed him into the parking lot. He is not alone.

Across the country, Asian American workers, citizens, and permanent residents have faced harassment and even physical assaults because of their national origin. A writer for the New Yorker was cursed out while taking out her trash. A 16-year-old student was bullied and attacked by schoolmates. Another New Yorker was kicked and punched at a subway station.

Dr. Russell Jeung, Ph.D., of San Francisco State University reports that between February 9 and March 7, 2020, 471 cases of racial discrimination made their way into the America’s News database. He called these figures “just the tip of the iceberg” because only the most serious cases would be reported by the media. Dr. Jeung helped set up a website in six Asian languages to gather first-hand accounts. It had 150 reports of harassment in just a week. Benny Lou, founder of NextShark, an Asian-American news website told the New York Times:

“We’ve never received this many news tips about racism against Asians. . . . It’s crazy. My staff is pulling double duty just to keep up.”

Calling the Coronavirus the “Chinese Virus” Creates Xenophobia and Puts Asian Americans at Risk

This intense racial discrimination is likely the result of early descriptions of COVID-19 as the “Chinese Virus”. Most notably, President Donald Trump repeatedly referred to the disease as “the China virus” or “the Chinese virus” until approximately March 24, 2020. He justified doing so to combat conspiracy theories saying the US military had brought the virus to China. While President Trump has since announced he was pulling back from associating the coronavirus with China, he also denied that his words were racist:

“It’s not racist at all, no, not at all. It comes from China, that’s why. I want to be accurate.”

However, the World Health Organization (WHO) has recommended against naming conventions that convey blame for years. In 2015, the WHO issued best practices for naming new human infectious diseases that warned against “unintended negative impacts by stigmatizing certain communities or economic sectors.” Dr. Keiji Fukuda, Assistant Director-General for Health Security said:

“This may seem like a trivial issue to some, but disease names really do matter to the people who are directly affected. We’ve seen certain disease names provoke a backlash against members of particular religious or ethnic communities, create unjustified barriers to travel, commerce and trade, and trigger needless slaughtering of food animals. This can have serious consequences for peoples’ lives and livelihoods.”

Dr. Chew and the over 2 million Asian Americans working in healthcare, transportation, service industries, and other essential workers are feeling that backlash now.

Employers Must Cut Short Racial Discrimination Due to COVID-19

The Asian Pacific American Labor Alliance, AFL-CIO, is turning to employers to cut these xenophobic reactions short. Teresa Ellis, a national executive board member for the organization, compared the racial discrimination Asian Americans are facing today to the accounts of discrimination and xenophobia targetting Muslim, Arab, and Middle Eastern Americans in the wake of the September 11, 2001 terrorist attacks. Lori Ecker, a member of the American Bar Association Section of Labor and Employment Law Council told the ABA Journal:

“I think what is going on now closely parallels that. . . . In our figuring out how we are going to emerge from this crisis, employers need to be sensitive to the issues that their Asian American employees are facing or could face and take some proactive steps to prevent that from happening like it did 19 years ago.”

To help cut short the COVID-19 racial discrimination against Asian Americans, the APALA has issued guidance, recommending that employers:

  • Let employees and customers know that people of Asian descent are not more likely to get or spread COVID-19
  • Be prepared to respond to clients and patients refusing service by Asian American employees in a way that does not cut their hours or discriminate against them in their work
  • Perform employee trainings that reaffirm the dignity of Asian American workers
  • Provide bystander intervention trainings that teach employees what to do when they witness racial discrimination
  • Take firm stances against outbreak-related jokes or harassment based on race or national origin
  • Post signs supporting Asian American workers in the workplace or business

Help for the Victims of COVID-19 Racial Discrimination

For those whose employers don’t take APALA’s advice, the Equal Employment Opportunity Commission and private employment lawyers can help. The EEOC has promised it is “rising to the challenges before us” to advance equal employment in the workplace and enforce anti-discrimination laws. At Eisenberg & Baum, LLP, our workplace discrimination attorneys are ready to hold them to that promise. If you have been the victim of COVID-19 based racial discrimination at work, we can help you negotiate with your employer to make changes in your workplace, or prepare and file an EEOC complaint on your behalf. Contact us to schedule a consultation over the phone and get our New York based employment attorneys working for you.

U.S. Supreme Court Takes On Racial Discrimination in the Media

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There have been laws against racial discrimination since just after the Civil War. But when it comes to enforcing those laws, the battle rages on. That fight has made its way to the United States Supreme Court in Comcast Corp. v. National Association of African American-Owned Media. The way the Court rules could change the future of discrimination cases nationwide.

The Nation’s Oldest Civil Rights Law

Title VII of the Civil Rights Act became law in 1965, but it wasn’t the first time the legislature passed a law to protect the nation’s disadvantaged residents. 42 U.S.C. § 1981 — referred to by the courts as Section 1981 — was passed in the fallout of the Civil War in 1877. It says:

“All persons . . . shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .”

It was designed to protect African American residents and business owners from racial discrimination as they began to exercise their rights as citizens. When their commercial efforts are burdened by racial bias and bigotry, they can use the federal courts to get equal access under the law.

Racial Discrimination in Cable Broadcast Contracts

Section 1981 is the law Byron Allen fell back on when he was shut out of commercial contracts in his entertainment businesses. Allen owned and operated the Entertainment Studios, a television and motion picture company operating 7 channels including JusticeCentral.TV, Pets.TV, Comedy.TV and Cars.TV. His shows have been distributed through Verizon, AT&T, and DirecTV, but never with Comcast. Allen filed a federal Section 1981 lawsuit claiming that Comcast’s refusal to enter a contract with Entertainment Studios was due to racial discrimination. In support of that claim, his complaint alleged Comcast’s:

  • Expressions of interest followed by repeated refusals to contract
  • Suggestions of how to secure support followed by reversals of positions after Entertainment Studios had undertaken the time and expense of those steps
  • Exclusion of Entertainment Studios even when taking on all 500 networks by its main competitors
  • Carriage of “lesser-known, white-owned” networks while claiming it had no bandwidth to carry Entertainment Studios.

Comcast didn’t just respond to the complaint, it filed an immediate Motion to Dismiss the lawsuit. It said that it had legitimate business reasons for refusing the contracts with Entertainment Studios. It also said under federal court rules there was no way Allen could make a case for racial discrimination because nothing he claimed showed a “but for” connection between racial bias and the loss of the contract.

The Two Standards for Proving Racial Discrimination

Comcast’s motion, and its appeal, depended on two previous Supreme Court cases analyzing different civil rights laws: the Age Discrimination in Employment Act (ADEA) and retaliation claims brought under Title VII. These cases said that by default, these laws require that the offending behavior would not have occurred “but for” racial bias or bigotry.

The Ninth Circuit Court, which heard the case, said Section 1981 worked differently. It said that both the other laws contained language that the conduct was “because of” discrimination. There is no “because” in Section 1981. The appellate court said that meant instead of alleging “but for causation”, all Allen had to do was allege facts that show race was a motivating factor in Entertainment Studios’ disparate treatment. The appeals court said it wasn’t the plaintiff’s job to tell what was inside the mind of Comcast’s vice president of programming. As long as the facts alleged appeared to support that race was part of the equation, that was enough for the case to go through to the discovery phase.

The Supreme Court Hears the Arguments on Racial Bias in Negotiations

Comcast wasn’t satisfied with that answer. It appealed the decision to the U.S. Supreme Court, which granted certiorari to review the case. On November 13, 2019, the matter was heard by the U.S. Supreme Court. The oral argument came down to technical legal details and that same central theme: whether racial bias needed to be the direct cause of the lost business, or just one factor among many.

Unlike the Ninth Circuit Court, the Supreme Court Justices’ questions centered on the difference between pleadings and proof. The Ninth Circuit’s opinion seemed to suggest the motivating factor standard would apply all the way through the case. But by the end of the oral arguments, it seemed that everyone — even Mr. Allen’s attorney — agreed that when the time came for trial he would have to show that same “but for” connection between discrimination and action. But Comcast said that same standard should apply to the initial pleadings. Mr. Allen’s attorney said that level of proof should come later, after the attorneys had their chance to develop their case through discovery.

As with any Supreme Court decision, it is hard to know what the Justices will do even by reading the oral arguments. The Court has until June 2020 to deliberate and write its opinion. If the court determines that a plaintiff can file a complaint based on a motivating factor, it will make it easier for the victims of racial discrimination to make their cases and take them to court. If it rules in favor of a “but for causation” standard, plaintiffs will often have a hard time putting together the evidence they need without access to the defendant’s records, or their thoughts.

At Eisenberg & Baum, we know how important it is to develop a strong case for our clients. Our employment discrimination attorneys, help employees and business owners file their claims under Title VII, state civil rights laws, and Section 1981. We stay on top of changes in the law, so that you know we are using the best strategies against the discrimination you face at work and in your contracts. If you have been the victim racial discrimination, contact us. We’ll meet with you and help create a strategy that protects you and your business.

Salary Negotiations or Racial and Gender Pay Discrimination: How Can You Tell?

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Whether you are applying for a new position, or asking for a raise, the idea of demanding more money from an employer is often nerve wracking. But what if you are being underpaid because of your race or gender? How can you tell if your pay is based on salary negotiations or racial or gender pay discrimination?

In this blog post, I will look at the factors the EEOC and the courts consider in determining whether differences in salaries are based on racial or gender pay discrimination. I will explain how the Equal Pay Act protects workers from being paid less for the same work, and will review common defenses by employers that may make proving your case more difficult.

Women, Minorities Get Paid Less for the Same Work

Every year, Equal Pay Day happens in early April (this year it was April 2). This date represents how far into the new year women have to work to earn the same amount as men in the previous year. In other words, this represents how big the gender pay gap is in the U.S.

According to the most recent data from PayScale, women earn approximately $0.79 for every $1 men earn in 2019. Even when you compare employees with the same title and qualifications, women still earn less than men. This number has improved over recent years, but not by much. In 2015, women earned $0.74 per $1 men earned. The numbers are also worse for employees in many racial minorities. Black or African American workers are still stuck at $0.74 per $1. Only Asian American women fair better than average at $0.93 per $1.

Title VII, the Equal Pay Act, and Pay Discrimination

State and federal law makes it illegal to pay women or minority workers less for the same work. Title VII of the federal Civil Rights Law includes salary, raises, and promotions in the definition of “adverse employment actions.” If these decisions are made based on any protected status — including sex, gender, or race — an employee is entitled to file a pay discrimination complaint with the Equal Employment Opportunity Commission.

Also, state and federal Equal Pay Acts specifically protect against gender pay discrimination. The New York State Equal Pay Act uses the same language as the federal law. In both cases, the law requires that men and women be given equal pay for work equal work in the same establishment. That doesn’t mean that cashiers in the same location of the retail store all receive the same wage. The laws don’t depend on titles to determine who gets paid how much. Instead, they depend on whether the jobs require substantially equal:

  • Skill (including experience, certifications, ability, education, and training)
  • Effort (including physical or mental exertion)
  • Responsibility (including accountability)
  • Working conditions (including physical surroundings and work hazards)
  • Physical place of business

Once an employee demonstrates that she was paid less than her coworkers for substantially equal work, it is up to the employer to justify the difference. The federal Equal Pay Act allows for 4 exceptions:

  • A seniority system
  • A merit system
  • A pay system based on quantity or quality of output
  • Any other factor other than sex

The last factor (called a “catch all” provision) has been used by employers to claim that differences in pay aren’t a result of gender pay discrimination. They are simply the result of men being better at salary negotiations than women.

Can Salary Negotiations Justify Racial and Gender Pay Discrimination?

Women can face difficulty negotiating for a higher starting salary or getting raises. Harvard Law School’s Program on Negotiation, described the intersection of salary negotiations and gender discrimination by saying:

“Yet its persistence in the workplace presents a personal negotiation challenge that asks women to reconcile their needs with how they present those needs to their counterparts.”

Siegel Bernard of the New York Times has described this conversation as trying “to juggle when they are on a tight rope.”

But whether or not it is difficult, do differences in the way men and women engage in salary negotiations excuse a company for paying women less? Basing a person’s salary on what he or she made at the last job can perpetuate systemic gender pay discrimination. Last year, in Rizo v Yovino, the Ninth Circuit Court said that “any other factor other than sex” necessarily means legitimate, job-related factors like experience, educational background, ability, or prior job performance. The court said that prior salary alone was not enough to justify gender pay differences.

That decision was vacated by the U.S. Supreme Court on February 25, 2019, but not because the Court disagreed with the ruling. Circuit Court Judge Stephen Reinhardt was listed as part of the majority in the Ninth Circuit decision, but he had died before the opinion was final. The Supreme Court said that was inappropriate and sent the case back to correct the error. Whether the Ninth Circuit stands by its decision on remand remains to be seen.

In the past, the Supreme Court has held that differences in the market value of men and women’s services “became illegal once Congress enacted into law the principle of equal work for equal pay.” Glass Works v. Brennan, 417 U.S. 188, 205 (1974). However, since then, the courts have been split on whether salary negotiations were enough of a reason to pay men more. That means whether an employer can use salary negotiations as its reason for why it pays men more than women could depend on where the employee lives or works.

If you are facing racial or gender pay discrimination, you need an employment discrimination who knows the law, and the courts, to help you make your case. At Eisenberg & Baum, LLP, we will help you review your situation and decide your best course of action to getting equal pay for equal work. No matter which strategy is best for you, we will help you fight to stop gender pay discrimination. Contact Eisenberg & Baum, LLP, today for a free consultation.

Black Women in Law Face Gender Discrimination and Racial Bias

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Many people assume that lawyers — both in-house and in firms — live comfortable lives and earn a lot of money. But if you ask a lawyer, especially a woman of color, you may find they experience a life very different from the stereotype. A recent study by the American Bar Association and the Center for WorkLife Law shows that black women in law (and other women of color) continue to face gender discrimination and racial bias that keeps them from reaching those lofty expectations.

In this blog post, I will review a new report that shows gender discrimination and racial bias continues to plague the legal industry. I will discuss what gender and race discrimination looks like in high-paying fields like law, and what black women in the law can do to help fight back against the problems in the industry.

ABA Study Reveals Gender Discrimination and Racial Bias Among Lawyers

It is a known fact that women and people of color are under-represented at the highest levels of the legal field. Women are less likely to be named partner in large firms, and people of color aren’t given access to the high-profile cases they need to build a reputation. But gender discrimination and racial bias can be hard to quantify.

That’s why, in 2016, the American Bar Association’s Commission on Women in the Profession and the Minority Corporate Counsel Association came together with the Center for WorkLife Law at the University of California’s Hastings College of the Law in San Francisco to study it. The team put together a survey of 2,827 in-house and firm attorneys, including nearly 600 who provided substantive comments, to review how gender discrimination and racial bias affects the work lives of four categories of attorneys:

  • White Men
  • White Women
  • Men of Color
  • Women of Color

The study confirms widespread gender and racial bias across all 7 basic workplace processes:

  • Hiring
  • Performance evaluations
  • Mentoring
  • Assignments
  • Networking opportunities
  • Pay
  • Promotion

In most cases, black women (and other women of color) reported the highest rates of discrimination and unequal treatment. However, white women and men of color also reported significant challenges to advancing within the legal industry. The study, “You Can’t Change What You Can’t See: Interrupting Racial & Gender Bias in the Legal Profession”, summarizes its findings saying:

“This report is the first of its kind to provide a comprehensive picture of how implicit gender and racial bias — documented in social science for decades — plays out in everyday interactions in legal workplaces and affects basic workplace processes such as hiring and compensation.”

Types of Implicit Discrimination Within the Legal Industry

The report summarizes the gender discrimination and racial bias within the legal industry into categories:

Prove-It-Again

Women of color, white women, and men of color all reported having to go “above and beyond” to receive the same recognition as their colleagues. Black women reported being held to higher standards than their colleagues 32% more than white men.

They also reported being mistaken for administrative staff, court personnel, or even janitors 50% more often than white men. These cases of mistaken identity also affected white women (44% higher) and men of color (23% higher).

Tightrope

The survey also revealed that black women and white women report pressure to walk a tightrope of gender expression. They are pressured to behave in feminine ways and get backlash for acting in masculine ways. They are also asked to perform more “office housework” and administrative tasks like taking notes for meetings.

Maternal Wall

The report also revealed a “flexibility stigma surrounding leave” affecting all groups — even white men. Women of all races reported being treated worse after they had children including:

  • Being passed over for promotions
  • Given “mommy track” low-quality assignments
  • Being demoted
  • Being paid less
  • Treated unfairly for working part-time or with a flexible schedule
  • Having their commitment or competence questioned after having children

Half of black women responding to the survey agreed that taking family leave would negatively affect their career. 57% of white women, 47% of men of color, and 42% of white men felt the same way.

Gender and Racial Pay Gap

The study also revealed that, in addition to the well-reported gender pay gap, the legal industry faces racial bias in compensation. Women of color believed their pay to be comparable to colleagues 31% less often than men. When asked if they get paid less than colleagues of similar experience and skill, 31% more black women said yes. (White women clocked in at 24% on these two questions.) When it came to fair compensation, it didn’t matter whether black women lawyers were working in-house or in law firms. The compensation bias was across the board.

Sexual Harassment

No study about gender discrimination and racial bias would be complete without a survey of sexual harassment in the workplace. About 25% or women reported unwelcome sexual harassment at work (compared to 11% of men of color and 7% of white men). One in 8 white women and 1 in 10 women of color even reported losing career opportunities after saying no to sexual advances at work. However, 70% of all respondents reported experiencing sexist comments, stories, and jokes in the legal profession.

All together, this study casts the legal industry in a grim light. Joan C. Williams of the Center for WorkLife Law told the ABA Journal:

“The implication of this report is that women and people of color have been invited into these high-stakes, high-status workplaces, like the law, but often are expected to play a very specific role. . . . They have to prove themselves more than white men, and are often expected to be worker bees who don’t grab the limelight or the highest compensation. And the same mistake can be more costly for a woman or person of color than the identical mistake for a white man.”

Black Women Lawyers Can Fight Back Against Gender Discrimination in the Law

When implicit bias and small-scale discrimination create disparities at work, the study suggests there may be systemic changes law firms can make to change the culture. The study report includes Bias Interrupters Tools for law firms and in-house attorneys. These strategies can help combat the baked-in assumptions that cause gender discrimination and racial bias to continue throughout the industry. The details of these tool kits will be discussed in a future blog post.

The good news is that black women and others facing gender discrimination and racial bias in the legal profession do have the power to fight back. Federal law prohibits the kind of discrimination in hiring, pay, and workplace treatment documented in the study. When black women find themselves passed over for promotion or facing the choice between a sexual encounter and the loss of a job, they can turn to the Equal Employment Opportunity Commission, or a private gender discrimination attorney for help enforcing their rights under Title VII of the Civil Rights Act.

At Eisenberg & Baum, LLP, our experienced employment discrimination attorneys can help. We will review your situation and help you plan a strategy to confront gender discrimination and racial bias in your law firm and pursue options in or out of court. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Asian-American Students Sue Harvard Over Affirmative Action Policies

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Competition for admission into America’s Ivy League universities has never been tighter. Students compete on grades, extracurricular activities, volunteer work, and awards. Still less than 5% of applicants get admitted to Harvard College. Now a lawsuit says the the school’s affirmative action policies make Asian-American students the victims of racial discrimination.

In this blog post, I will review a lawsuit filed by Asian-American students rejected by Harvard University. The complaint claims the university’s Affirmative Action policies create racial discrimination against minority students. I will review past Affirmative Action cases and explain when a college may consider a student’s race in deciding admissions.

Lawsuit Says Affirmative Action Policies Create Racial Discrimination in Enrollment

A federal district court in Boston, Massachusetts, has been asked to rule that Harvard’s Affirmative Action policies create racial discrimination in enrollment. The plaintiffs — all Asian-Americans represented by Students for Fair Admissions — say their applications were unfairly rejected from the Ivy League school based on their race. They say Harvard has set an illegal restrictive quota for the number of Asian-American students accepted to the university every year.

According to the lawsuit Harvard University’s Asian-American admissions has been stuck at 18% even though the national population has changed over time. In contrast, Asian-Americans make up 34.8% of the University of California, Los Angeles (UCLA) student population, 32.4% at Berkeley, and 42.5% at Caltech. However, part of this disparity may relate to the higher Asian-American population in California.

Is Affirmative Action Racial Discrimination?

Affirmative action has been through the courts before. Colleges and universities have long considered an applicant’s race as part of admissions, generally to promote diversity on campus. But isn’t treating applicants differently based on race illegal racial discrimination?

In 1978, in Regents of the University of California v Bakke, the U.S. Supreme Court said using racial quotas was illegal and violated the Equal Protection Clause. But that decision did allow colleges and universities to use race as one factor among many if done to achieve diversity.

In 2003, the U.S. Supreme Court considered two more affirmative action cases involving the University of Michigan and its law school. There the court again said using race as part of the admissions process was allowed, but the university’s point-based system (which awarded up to 20 points out of a total 150 points for an applicant’s race) went too far. The Court said the overly mechanized system created racial discrimination in the application process. Notice, these decisions are based on Equal Protection under the Constitution, not federal civil rights laws.

Most federal Affirmative Action lawsuits are brought by members of the racial majority. White applicants will argue that they were passed over in favor of minority candidates. In fact, Students for Fair Admissions have represented those white applicants before against the University of North Carolina at Chapel Hill and the University of Texas at Austin.

Asian-Americans Split Over Claims of Racial Discrimination

This time, the plaintiffs are themselves a racial minority: Asian-Americans. The students say that Harvard (and other elite colleges not named as defendants) holds Asian-Americans to a higher standard than other applicants. They accuse the school of using racial balancing in their admissions process, which they say violates Equal Protection.

But not all Asian-Americans feel the same way. Some believe Harvard’s admissions practice and its diversity has enriched their educational experience. Emily Choi, who will be a junior with a history and literature concentration at Harvard this fall, told the New York Times:

“I firmly believe in affirmative action. . . . The diversity at Harvard has been key to my learning, and I think that if there weren’t so many people of different backgrounds, I wouldn’t be forced to think about things in new ways.”

Does Harvard’s Affirmative Action Policy Pass the Many Factors Test?

The question for the federal district court is whether Harvard’s Affirmative Action policy lives up to the standard set in earlier Supreme Court cases. Harvard’s attorneys originally objected to releasing the university’s admissions criteria out of fear that incoming applicants may use it to game the system. But now, many of the details of Harvard’s Affirmative Action policy have come to light. The university reports that it considers an applicant’s:

  • Grades
  • Test scores
  • Intended major
  • Personality
  • Race and ethnicity
  • Geographic region (rural vs urban)
  • Parents’ occupations
  • Extracurricular activities

In addition, the team considering these applications can give “tips” (admission advantages) to some applicants who are:

  • Racial and ethnic minorities
  • The children of Harvard or Radcliffe alumni (legacy)
  • Relatives of a Harvard donor
  • The children of staff or faculty
  • Athletes

Applicants on the “dean’s interest list” may have particular clout; and the “Z-list” helps students who have weaker academic scores. In testimony taken recently, Judge Allison D. Burroughs seemed to be particularly interested in whether these “tips” and lists could create inadvertent racial discrimination based on the unconscious bias of the evaluators.

Over the years, colleges and universities have seen federal courts limit their ability to use Affirmative Action policies without raising racial discrimination concerns under the Equal Protection Clause of the 14th Amendment. Commentators are saying this Harvard case is set up to take the matter back to the U.S. Supreme Court. Whether Harvard’s claims that the policy promotes diversity will stand up to constitutional scrutiny remains to be seen.

At Eisenberg & Baum, LLP, our employment discrimination attorneys help employees facing gender discrimination on the job, and on campus. If you are the down side of Affirmative Action, we can help you review your options and protect your rights. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.