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Can You Be Fired for Objecting to Racially Offensive Material at Work?

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It can be hard to stand up to your employer in the face of racial discrimination. You may worry that filing a complaint with HR will make your work life harder, or even result in termination. But can you legally be fired for objecting to racially offensive material at work? What are your options if you are facing retaliation?

In this blog post, I will review a recent EEOC lawsuit against Lafayette Schools’ Federal Credit Union, now known as Meritus Credit Union, for retaliation. I will explain federal laws protect against employees being fired for objecting to racially offensive material at work. I will discuss options available to employees who want to push for change at the office without putting their jobs at risk.

Bank Manager Fired for Objecting to Racially Offensive Material at Work

Connie Fields-Meaux was the only African-American branch manager at Lafayette Schools’ Federal Credit Union (Lafayette), now known as Meritus Credit Union, in Lafayette, Louisiana. During a training at the credit union, Lafayette screened a video showing a caricature of an African-American fast food worker as an example of “how not to provide customer service”. It upset her so much she had to excuse herself from the training momentarily.

Later, in speaking with coworkers who also saw the video, she learned that other black employees were upset too. She decided to speak out. She reported the concerns of one of her coworkers, objecting to the racially discriminatory material. The very next day, she was fired without warning or explanation.

Retaliation is Illegal Racial Discrimination Under Federal Law

In many states across the country, at-will employment is the norm. Employers are able to fire employees at any time, with or without notice, for almost any reason. However, employers can’t use at-will employment as an excuse for racial discrimination or retaliation.

Title VII of the federal Civil Rights Act makes it illegal to fire someone for objecting to racially offensive material at work. The law, like every other federal anti-discrimination statute, protects employees from both the initial racial discrimination, and from retaliation when they make a complaint. According to the Equal Employment Opportunity Commission’s (EEOC’s) New Orleans Field Office Director, Keith Hill:

“Employers must respond to — and certainly not fire — employees who raise concerns about racially offensive materials.”

What Counts as a Protected Activity Under Anti-Discrimination Laws

Title VII says that when an employee raises a racial discrimination complaint — against the company, a supervisor, a coworker, or even a customer — the employer has a duty to take reasonable steps to investigate and respond to the complaint. That does not include retaliating against the complaining employee. “Protected activities” include:

  • Filing an internal complaint for racial discrimination
  • Filing an EEOC complaint
  • Filing a racial discrimination lawsuit
  • Serving as a witness to any complaint or lawsuit
  • Talking to a supervisor about racial discrimination or harassment
  • Participating in an in-house investigation of a complaint
  • Refusing to follow orders that would result in racial discrimination
  • Resisting racial harassment

Even if it turns out that the activity does not meet Title VII standards for racial discrimination, employees are still protected as long as they reasonably believe the activity is illegal racial discrimination under federal law.

Is Racially Offensive Material at Work Always Racial Discrimination

Since Title VII only protects employees responding to what they reasonably believe is racial discrimination, you may wonder if that covers all forms of racially offensive material. According to Title VII and the EEOC, race discrimination involves treating an employee (or applicant) worse because he or she is of a specific race or has characteristics associated with race (i.e. skin color, hair texture, facial features). Racial harassment, a form of discrimination, includes racial slurs, offensive remarks, and the use of offensive symbols. For racial harassment or discrimination to be illegal under federal law, it must either:

  • Involve an “adverse employment decision” (i.e. hiring, firing, shift assignment, promotions, or raises)
  • Be so frequent or severe it creates a hostile or offensive work environment

A single off-color joke, or piece of racially offensive material may not always rise to the level of a federal lawsuit. But when employees see a pattern emerging or face a particularly hostile form of harassment, it is probably discrimination.

It is also appropriate to object even to the first piece of racially offensive material at work. This establishes that the conduct is offensive to you and strengthens your case later if your employer fails to address your concerns.

How to Object to Racially Offensive Material at Work if You Fear Retaliation

If you are worried that objecting to racially offensive material at work could get you fired, there are some strategies you can use to protect yourself, and your job:

  • File an anonymous complaint (if company policy allows)
  • Raise your concerns with your union representative (if you have one)
  • Ask to meet privately with a manager or superior
  • Send your complaint in writing (and keep a copy)
  • Talk to an employment discrimination attorney who can help with informal negotiations

Getting an employment discrimination attorney involved early in the process can help protect you from retaliation and make sure you won’t be fired for objecting to racially offensive material. A lawyer doesn’t automatically mean a lawsuit. Sometimes, your employment attorney can help you negotiate changes at work without filing a formal complaint or going to court. Because your employer knows a lawyer is involved, it will be less likely to dismiss your problem out of hand or retaliate against you for making the complaint.

If you are facing harassment at work, or are afraid to be fired for objecting to racially offensive material, our experienced workplace harassment attorneys at Eisenberg & Baum, LLP, can help you consider your situation, and your options through the EEOC and in court. Contact us today to schedule a free initial consultation and get your case started.

Responding to the Threat of Native American Racial Discrimination

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The public face of racial discrimination is usually an African American, or possibly Latino. However, members of any minority can face bias and prejudice at work and in their day-to-day lives. Tribal members, and others who identify as Native Americans, face their own unique threat of Native American racial discrimination. But there are ways to respond to the threat against the nation’s First Peoples.

In this blog post, I will review the Robert Wood Johnson Foundation’s poll regarding racial discrimination among minorities and a publicized panel discussion hosted by the Harvard T.H. Chan School of Public Health regarding Native American Racial Discrimination. I will identify unique challenges faced by native employees and will provide options for those facing discrimination at work.

Native Americans Are An Underrepresented Racial Minority

In conversations about race relations in America, the risks faced by African Americans often take center stage. Sometimes, the loud voices of groups like Black Lives Matter can drown out the perspectives of smaller minority groups, including Native Americans. Stephanie Fryberg, associate professor of psychology and American Indian studies at the University of Washington, told NPR:

“Native people are generally omitted from discussions of discrimination. . . We have been rendered invisible in so many domains. . . the perception is that we’ve vanished or there is the negative stereotype that we are helpless, dependents or wards of the government. That is just not my experience.”

The Robert Wood Johnson Foundation’s racial discrimination poll makes an exception to that invisibility. In breaking down the statistics by racial minority, the poll, and a series of articles explaining the data, gave voice to a variety of racial groups, including Native Americans. The study included 342 adult Native Americans, asking questions about everything from police interaction and housing to workplace discrimination. It evaluated discrimination on the societal and community level, and asked people about their personal experiences, shedding light on the frequency of Native American racial discrimination.

1/3 of Native Americans Report Workplace Discrimination

Native American’s relative rarity (as compared to other racial minorities) doesn’t stop them from being the target of workplace harassment and discrimination. According to the Robert Wood Johnson Foundation’s poll, one third of all workers surveyed in the category report having personally experienced Native American racial discrimination when it came to pay or promotions. Over 30% said they had experienced discrimination when applying for jobs. More broadly, 39% of Native Americans surveyed reported personally experiencing offensive comments, racial slurs, and negative assumptions about their race.

Living In Majority-Native Areas Makes Discrimination Worse

Native Americans (including “Indians”, Native Alaskan and Native Hawaiian residents) make up less than 2% of the nation’s workforce. However, their populations tend to gather in particular geographical regions because of national treaties, which established reservations with the various tribes. NPR’s review of the RWJF poll shows that areas with large populations of indigenous people have bigger problems with Native American racial discrimination than more blended communities. In majority-Native areas, poll participants were significantly more likely to experience workplace discrimination (54% compared to 22% in non-majority areas), and in their interactions with police officers (55% compared to 16%). This may be because the stereotypes associated with the First Peoples are more widely known in areas with higher populations.

Responding to the Threat of Native American Racial Discrimination

Native Americans may perceive government institutions including the police as working against them. But national Civil Rights laws, including Title VII protect all American workers. When faced with the threat of Native American racial discrimination, indigenous workers have the right to file complaints, internally, with the Equal Employment Opportunity Commission, or in federal court. They may be entitled to relief if they experience discrimination in:

  • Applying for jobs or promotions
  • Assignment of tasks, shifts, or responsibilities
  • Payment of wages
  • Addressing workplace harassment by coworkers

Whenever a person’s race enters into an employment decision, whether that race be white, black, or Native American, that person has the right under Title VII to be compensated for those lost employment opportunities.

At Eisenberg & Baum, LLP, our employment discrimination attorneys understand the risks faced by Native American workers. We know what Native American racial discrimination looks like, and how to make it stop. We will help you assess the strength of your case and explore your options in and out of court. Contact us today to schedule a free consultation.

Harassed at Work: Can You Sue for Emotional Abuse?

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When you are harassed at work, it can make you dread every shift and put your physical and mental health at risk. But can you do anything to stop it? Can you sue for emotional abuse if harassed at work?

In this post, I will review the laws that protect employees from workplace harassment and emotional abuse. I will summarize the damages available for stress, mental health treatment, and other emotional distress, and how an employment discrimination attorney can help you be compensated for your emotional pain and suffering.

Emotional Abuse Can Cause Serious Health Concerns

Emotional abuse at work is always about power. The conscious, repeated effort to wound an employee with words is designed to undermine those employees’ accomplishments and rob them of their self-confidence. Workplace harassment can include:

  • Misplaced blame for errors
  • Sabotage of work done
  • Unreasonable work demands
  • Stealing credit for work done
  • Discounting accomplishments
  • Intimidation
  • Insults and put-downs
  • Humiliation
  • Threats to a person’s job, seniority, or assignments

Workplace bullying and other forms of emotional abuse aren’t just about hurt feelings. Psychological harassment can seriously harm an employee’s well-being and productivity. Over time, emotional distress caused by a hostile work environment can result in anxiety, depression, stress, and even trauma responses like Post Traumatic Stress Disorder (PTSD). It can cause reduced productivity, increased absenteeism, and even require leaves of absence as the victim addresses the mental-health consequences of the abusive treatment.

The effects of emotional abuse can’t be easily undone. They often require ongoing mental health treatment, therapy, and sometimes even require medication. When emotional abuse rises to the level of psychological trauma, the effects can even be permanent. Stress and trauma can also cause physical illnesses including ulcers, digestive issues, and sleep disorders.

When Emotional Abuse is Illegal

There is no general law against workplace bullying or other forms of harassment at work. But state and federal laws do protect against a hostile work environment based on a number of protected traits:

Often, a hostile work environment includes emotional abuse and derogatory statements based on or about a person’s protected trait. When an employer doesn’t respond to complaints about sexual harassment or racial jokes, it can open the door for an employee to sue for emotional abuse.

What to Do When Workplace Harassment Isn’t Discrimination

Even when your emotional distress isn’t caused by racial tension or unwanted sexual advances, you may still have the ability to sue for emotional abuse. Many employer have anti-bullying policies against workplace harassment. When a superior refuses to enforce those policies it can create a breach of contract action against the company. However, the claims and damages available in these cases depend on the language in each individual contract or policy. So it is important to meet with an experienced employment lawyer to review your options.

Damages Available in an Emotional Abuse Lawsuit

If you and your employment discrimination attorneys determine you have a valid emotional abuse lawsuit, you may be able to recover a variety of damages and other remedies. On the one hand, you will be entitled to back pay and front pay for any time you were unable to work as a result of the abuse. This can cover leaves of absence under FMLA or short-term disability, as well as constructive firing if you had no choice but to leave your job.

You should also keep a record of all actual costs connected to the abuse and any related job loss. You may be able to receive compensation for anything from hospital bills and therapy costs to travel for interviews in replacement jobs or training needed to shift employment.

Depending on the nature of your workplace harassment claim, and the laws in your state, you may also be entitled to compensatory and punitive damages based on your emotional distress, pain and suffering, harm to reputation, and other non-economic injuries. Often these damages must be objectively demonstrated. You and your lawyer should be prepared to use medical records and even expert witnesses to present your claims.

Finally, if you want to keep your job, you may be entitled to injunctive relief. This is where a judge orders your employer to change its ways. An injunction could require a company to create or enforce anti-harassment policies, change hiring, job assignment, and firing practices, or put managers, supervisors, and employees through training. A judge could even require a business to fire the one responsible for the harassment.

There are many options for remedies available in an emotional abuse lawsuit. At Eisenberg & Baum, LLP, our employment discrimination attorneys will review your case, determine which laws apply to your circumstance, and help you understand your rights. We will discuss your options and create a plan, so you know what to expect. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

What is Ford Motor Company Doing About Harassment of Women and African-Americans?

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When a workplace turns hostile, it is often not just one employee who suffers. Even when only a handful of employees come forward to the Equal Employment Opportunity Commission (EEOC), it is often a sign that relief will take company-wide changes. At Ford harassment of women and African-Americans has been going on for decades. Find out what Ford Motor Company is doing to combat harassment in its Chicago plants. In this blog post I will discuss the recent Ford Motor Company settlement with the EEOC. I will explain when sexual harassment and racial discrimination can result in class action lawsuits. I will also explain how the EEOC’s conciliation process can sometimes be used to avoid public embarrassment, and lengthy litigation.

Title VII Protects Classes of Protected Employees

Title VII of the Civil Rights Act makes it illegal for employers to engage in or allow harassment or discrimination based on race, color, or national origin, as well as sex or gender. Employers are not allowed to make hiring or other employment decisions with these traits in mind. They are also required to take reasonable steps to stop discrimination or harassment from creating a hostile work environment for their employees.

When a Title VII complaint includes larger employers like Ford Motor Company, it often includes harassment against more than a handful of employees. In these cases, the EEOC or private workplace discrimination attorneys often pursue class action lawsuits for the benefit of all employees in the protected class.

EEOC Conciliation Settlement Advantages

Class action lawsuits can become large and complicated, including extensive testimony from affected employees, witnesses, and experts. They are also attractive to journalists, and can turn into bad press for the employer. What that happens, it puts the representative plaintiffs in the uncomfortable position of becoming the public face of a highly publicized lawsuit.

This can make a settlement attractive for everyone involved. EEOC investigations include a request that the parties voluntarily engage in conciliation, an informal mediation process, to resolve complaints. Many larger companies are willing to use conciliation, especially when there is a chance the complaints will lend themselves to a class action lawsuit. In those cases, employees may want to take advantage of the mediation process to resolve their cases more quickly and privately, while still getting the relief they need.

If employees do decide to use the EEOC conciliation process, it is a good idea discuss the matter with an independent employment attorney first. The EEOC often has the big picture in mind — looking for ways to make the workplace less hostile for the largest number of employees. If an individual claimant’s damages or concerns are different or more severe than the average class member, those needs can sometimes be overlooked in the settlement process.

Ford Motor Company’s Conciliation Settlement

In August 2017, Ford Motor Company decided to take advantage of the EEOC’s conciliation settlement to resolve complaints of workplace harassment of women and African-Americans. The charges claimed that personnel at the Chicago Assembly Plant and Chicago Stamping plant had subjected female and African-American employees to sexual and racial harassment. The EEOC’s investigation also revealed evidence that Ford had retaliated against employees who complained about the treatment.

According to announcements by the EEOC and Ford Motor Company, the settlement included:

  • Up to $10.125 million in cash damages
  • Regular training at the Chicago facilities over 5 years
  • Distribution of the company’s anti-harassment and anti-discrimination policies to employees and new hires
  • Reporting to the EEOC on all harassment and related discrimination complaints
  • Workplace monitoring

By entering into the settlement, Ford was able to avoid admitting liability for the harassment allegations.

Neither Ford nor the EEOC commented on how many employees were involved in the original charges. But the financial part of the settlement could apply to any of the company’s 5,500 employees at the two plants who are women or African-American men working at the plant after January 1, 2010. To receive their portion of the settlement, employees will need to establish their eligibility through a process set out in the agreement.

A conciliation settlement can often resolve claims of workplace harassment of women, African-Americans, and other protected employees sooner and more discreetly than extensive litigation. But it isn’t right for every case. If you are facing harassment at work, our experienced workplace harassment attorneys at Eisenberg & Baum, LLP, can help you consider your situation, and your options through the EEOC and in court. Contact us today to schedule a free initial consultation and get your case started.

Racial Slurs and Retaliation Drive EEOC to File New York Lawsuit

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Is it ever okay for a supervisor to use a racial slur at work? Should an employer be allowed to fire you in retaliation for filing a harassment complaint? The Equal Employment Opportunity Commission (EEOC) recently drew its line in the sand against these forms of racial discrimination by filing a lawsuit in New York’s federal district court.

In this blog I will review the recently filed lawsuit, EEOC v. A & F Fire Protection Co., Inc. in the U.S. District Court for the Eastern District of New York. I will summarize Title VII of the Civil Rights Act as to racial discrimination and retaliation, and explain what made A & F’s conduct cross the line for the organization.

Company Supports Racial Slurs Against Black and Hispanic Employees

Black and Hispanic employees of the sprinkler installation company, A & F Fire Protection Co. Inc., located in Massapequa, New York, came to the EEOC with very specific and disturbing complaints. They said their supervisors and co-workers were calling the minority workers the “N-word”, “spics”, “jigaboos” and “wetbacks”. The company knew this was happening, according to the complaints, and refused to step in to protect its employees from racial harassment and discrimination.

Instead of addressing the racism and bigotry happening among its employees, the EEOC alleges the Long Island-based company retaliated against the minority workers who raised the issue, firing them or forcing them to quit. According to the complaint, when the company received notice that two EEOC charges had been filed against it, the owner instructed the complaining workers’ supervisor to fire them. The supervisor refused, and the company retaliated against him as well.

The EEOC attempted pre-suit conciliation. When no settlement could be reached, it filed a lawsuit in the Eastern District of New York on behalf of the employees for back wages, compensatory and punitive damages, and changes to the company’s employment policies to prevent future harassment.

Title VII and Racial Discrimination

Title VII of the federal Civil Rights Act makes it illegal for an employers to discriminate based on a person’s race, color, or national origin (among other protected traits). When racial harassment happens at work, whether by supervisors or co-workers, an employer is legally required to take reasonable steps to stop the behavior. Depending on the situation this may include changes to or enforcement of company policy, discipline against the harassers, or reassignment of the parties involved.

While racial slurs like those used at A & F Fire Protection Co. Inc. are not the only form of racial discrimination, they can easily create a hostile working environment that violates the law. EEOC Trial Attorney Kirsten Peters said in a statement:

Federal courts have held that even one utterance of a racial slur by a supervisor in the workplace can constitute legally actionable harassment. In this case, the use of racial slurs was a regular occurrence. Employers cannot permit widespread harassment of this sort to occur.

EEOC New York District Office Regional Attorney Jeffrey Burstein added:

The use of racial slurs in the workplace is unacceptable. . . . The abuse was so pervasive in this case that its tolerance was especially troubling. Upon learning of racial harassment in the workplace, it is an employer’s obligation under the law to ensure that it does not continue.

Retaliation for EEOC Complaints

When A & F employees asked their company to address the racial slurs being thrown around at work they faced retaliation for raising the issue. This kind of retaliation is illegal under Title VII (and many other anti-discrimination laws on the state and federal level). An employer may not discipline, punish, or make employment decisions about a worker who:

  • Speaks to a supervisor or manager about discrimination or harassment
  • Refuses orders that would result in discrimination
  • Registers internal complaints about racial slurs or a hostile working environment
  • Files an EEOC charge, complaint, or lawsuit
  • Acts as a witness or answers questions during an internal or EEOC investigation.

This is true even if the allegations turn out to be false, or the person incorrectly believes that the behavior is illegal racial discrimination.

However, all too often employers facing EEOC investigations resort to retaliation in an effort to remove the problem. It often demonstrates that the biases behind the statements exist at even the highest levels of the organization. When that happens, it creates a new Title VII claim for the targeted employees and only compounds the company’s problems. EEOC New York District Office Director Kevin Berry explains:

An employer only makes a bad situation worse and violates federal law when it retaliates against an employee for raising concerns about discriminatory behavior. Preventing retaliation against employees who come to the EEOC for help is one of the agency’s top priorities.

Racial discrimination and retaliation are unfortunate realities for many American workers. But employees do not have to put up with this kind of hostile work environment. Whether through the EEOC or a private Title VII lawsuit, they can see changes at work and be compensated for their suffering, time, and trouble.

Whether you are facing racial slurs, retaliation, or other, more subtle forms of racial discrimination at work, the employment discrimination attorneys at Eisenberg & Baum, LLP, based in New York City, are here to help. We will meet with you to review your claims, help you choose the best course of action, and see it through to the end. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

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.

Black Haitian Dishwashers Called “Slaves” EEOC Lawsuit Says

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The Equal Employment Opportunity Commission (EEOC) recently filed a lawsuit in Florida claiming a local hotel discriminated against Black Haitian dishwashers, including calling them “slaves”. The case raises the questions of whether discrimination can happen between minorities, and how staffing agencies can mask deeper problems.

In this post, I will discuss EEOC vs SBEEG Holdings, LLC et al. I will review the racial discrimination allegations and explain how Title VII applies between different classes of minorities. I will also explore how the EEOC is pursuing staffing agencies who hide discrimination through outsourcing labor.

Hotel Discriminates Against Black Haitian Dishwashers

A number of Black Haitian dishwashers filed a complaint with the Equal Employment Opportunity Commission (EEOC) against the hotel that employed them. They claimed that they had been discriminated against based on their race, color, and national origin when the SLS Hotel South Beach brought on a staffing company to do their work as stewards and dishwashers. The staffing company’s employees were primarily light-skinned Hispanic workers. Some of the terminated employees saw their replacements doing their work, even as they were being escorted from the building by security.

The ensuing EEOC investigation revealed that at the time of their replacement, the Black Haitian employees were treated differently than their Hispanic counterparts. Hotel management prohibited the use of Creole, even between employees, but permitted its Hispanic employees to speak Spanish. It also assigned difficult and physically demanding tasks, such as carrying heavy items, to Haitian staff. In addition, managers and chefs allegedly called the Black Haitian dishwashers disparaging names, including “f—–g Haitians” and “slaves”.

The EEOC addressed the dishwashers’ complaints by submitting the claim to conciliation efforts. When informal negotiations failed in April 2017, the EEOC filed a lawsuit in the United States District Court for the Southern District of Florida. In its Complaint, the EEOC accused SLS Hotel South Beach and other related legal entities of violating Title VII of the Civil Rights Act of 1964.

Racial Discrimination Between Minorities

Title VII prohibits discrimination based on a number of different personal traits, including race, color, and national origin. Employers are not allowed to use these protected traits when making hiring and firing decisions or to create a hostile working environment. While many EEOC complaints allege discrimination by a member of the majority against members of a minority, the law is not so narrow. Any discrimination based on race is illegal, even if it happens by members of the same ethnic community or competing minority groups.

In the case of SLS Hotel South Beach, the allegations were that the hotel pit two minority groups against one another. The management was said to have replaced Black Haitian employees with light-skinned Hispanic workers. This created an apparent hierarchy among racial and ethnic minorities. It also appeared that the management treated each minority group by its own rules. If these allegations are true, it would amount to racial discrimination, favoring the Hispanic workers over their Black Haitian counterparts.

Using Staffing Companies to Sidestep Title VII

EEOC vs SBEEG Holdings, LLC et al. poses a second legal question which appears to have gotten the EEOC’s attention. The Black Haitian dishwasher plaintiffs were removed as a group when the SLS Hotel decided to outsource their jobs to a staffing company that hired primarily light-skinned Hispanic workers. This adds a layer of complexity to the case because the hotel may have access to defenses that have more to do with the legal structure of companies than the treatment of employees. For example, it may argue that it did not control the race of the workers sent by the staffing company.

But the EEOC says that is no excuse. Michael Farrell, District Director for the EEOC’s Miami District Office, said in a statement:

“In serving this community, the Miami District Office is mindful of the diverse workforce in all facets of the service, hospitality and tourism sectors and will protect workers facing discrimination in these important Florida industries.”

Discrimination in complex employment relationships, including staffing agencies, independent contractors, and on-demand workers is one of the EEOC’s top priorities, as described in the Strategic Enforcement Plan for 2017-2021. Regional Attorney Robert E. Weisberg of the Miami District Office said:

“Employers should not be able to avoid liability by using a staffing agency to discriminate when it cannot lawfully do so on its own. . . . Consistent with the agency’s strategic enforcement goals, the EEOC will be vigilant in ensuring employment discrimination is not hidden behind increasingly complex business relationships, including the outsourcing concept.”

Whether SLS Hotel South Beach and its co-defendants will be found to have violated Title VII through the use of a staffing company remains to be seen. But the EEOC believes that by firing the Black Haitian dishwashers without giving them a chance to apply to the staffing agency, the hotel committed illegal racial discrimination against its staff.

At Eisenberg & Baum, LLP, our employment discrimination attorneys stay up to date with current events in racial discrimination. We can help you understand your rights at work, and what your remedies might be if you have faced employment discrimination based on your race, color, or where your family comes from. Contact Eisenberg & Baum, LLP, today for a free consultation.

How Professional Records Help Your Discrimination Lawsuit

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The first step in a discrimination lawsuit starts before you ever leave work. By gathering your professional records ahead of time, you can fight back against victim blaming. Find out what you should know, and what you can do before even meeting with a lawyer to make your case stronger.

In How to Create a Sexual Harassment Log, I explained that your log should include performance reviews, job offers, raises, and other professional records. In this blog I will explain how an employment attorney can use those records to prove your workplace discrimination lawsuit. I will explain what records you should keep and why, and explain how they can protect you from a common employer defense strategy.

Why Professional Records Are Important

Whether you are facing workplace bias based on your race, gender, religion, or sexual orientation, your discrimination lawsuit comes down to one of two legal theories:

  • Hostile work environment or
  • Adverse employment decisions.

An adverse employment decision can include any decision by a manager, supervisor, or boss that negatively affects your work, as long as it is based on one of the protected traits. While a hostile work environment is usually demonstrated by logging who did what on the job, proving adverse employment decisions can take a bit more paperwork.

When most people think of employment discrimination they imagine a person being fired because of their gender, or passed over because of their race. But there are more subtle decisions your boss makes every day that could be considered grounds for a discrimination lawsuit. Decisions like job delegation, shift assignments, and raises can sometimes go unnoticed without careful attention to your professional records.

How Lawyers Use Professional Records

When you file a complaint with the Equal Employment Opportunity Commission (EEOC) or in civil court, you will have to show that your employer made work-related decisions based on illegal bias. Your discrimination attorney can use your professional records to show when and how these decisions happened. By gathering documents from before and after the discrimination began, your attorney can show what has changed along the way.

One popular defense employers use in discrimination cases is to say that the decision was made because of employee performance. In other words, it wasn’t your race, sex, or ethnicity that caused you to be fired; it was the work you did in the past. Professional records are a strong tool against this defensive tactic. By showing what other supervisors, managers, or even previous employers thought of your performance, your lawyer can prove that it wasn’t your work that motivated your employer. It was bias.

What Professional Records Should You Keep?

Which records are most important depends on what your boss is doing.

  • Offer letters and contracts: Your lawyers can use offer letters and employment contracts to show what your work was supposed to be.
  • Performance reviews: If your employer uses periodic performance reviews to determine raises, promotions, or bonuses, these reviews can demonstrate your value as an employee. As supervisors change, and biases become evident, you will be able to see shifts in the way you are evaluated.
  • Proof of raises and bonuses: Your attorney can use anything from a check stub to an award letter to show when you have received raises or bonuses in the past. This can also provide clues to your lawyers about what documents exist for other employees, so they can show how you were treated differently than your coworkers.
  • Work schedules and job assignments: By keeping a log of your weekly work schedule or job assignment over time, you and your lawyer can see where a supervisor is treating you poorly. If you are consistently brought in for split shifts or odd hours that you didn’t expect, it could be a sign of discrimination.

Why Not Let the Lawyer Do the Work?

As you prepare to file a discrimination lawsuit, it is a good idea to start gathering the paperwork, even before your lawyers draft a complaint. Unfortunately, sometimes when an employee complains about discrimination he or she may be quickly fired or denied access to records related to employment. This is illegal retaliation, but it can make it harder to prove your case. That’s why it is a good idea to collect your documents early, rather than letting your lawyer do the work as part of your discrimination litigation.

An experienced employment discrimination attorney can make your professional records work for you, helping to prove your discrimination lawsuit. At Eisenberg & Baum, LLP, our staff can help you identify what to keep, and make a strategy to get the relief you want, in or out of court. Contact us to schedule a free consultation.

Racist Jokes at Work: When Is It Discrimination?

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When racist jokes fly in the workplace it can make every shift uncomfortable. When does racial harassment cross the line into discrimination? Is there anything you can do to stop the jokes?

In this blog post, I will discuss the federal laws against racial discrimination. I will explain what it takes to form a racial harassment claim, and will give some examples of when racist jokes create a hostile workplace.

Racist Jokes and Racial Harassment

Racial harassment is unwelcome verbal or physical conduct based on or happening because of your race or national origin. Racial jokes are one form of racial harassment, as is stereotyping. Just like sexual harassment, racial harassment can be illegal under Title VII of the Civil Rights Act of 1964 if it results in an adverse employment decision (like firing, wages, or shift assignments), or if it is severe or frequent enough to create a “hostile work environment.”

Racial slurs, physical threats, and racial jokes have all been held to create a hostile work environment, but it depends on the circumstances, and how the management responds to complaints. Here are a few examples of when racist “jokes” amounted to discrimination.

Physical Racial Jokes Cross the Line Quickly

When racial jokes include physical elements, they can quickly turn into discrimination. When coworkers hung a noose in a black employee’s work area, that was severe enough to count as discrimination. EEOC v. A.C. Widenhouse Inc., No. 1:11-cv-498 (M.D.N.C. verdict filed Jan. 28, 2013). In another case, graffiti including racial slurs was painted on a minority worker’s truck. That too, counted as discrimination. EEOC v. Yellow Transp. Inc., No. 09 CV 7693 (N.D. Ill. preliminary approval granted June 28, 2012).

Casual Working Environments Often Require Notice

If you work in an office or shop where everyone uses foul language, and where racial slurs are part of the atmosphere, you will need to take an extra step to protect your rights. By putting your coworkers on notice that race-based humor offends you, you can protect yourself and lay the groundwork for a racial discrimination case.

Supervisor’s Comments Held to Higher Standard

If the racist jokes are made by a supervisor, boss, or manager, it may take less to meet the requirements for racial discrimination. That is because a supervisor’s words carry greater weight and have more effect on the workplace than a person’s coworkers. When a supervisor used racial epithets about the intelligence and behavior of African American employees, the court said it was discrimination. EEOC v. AA Foundries Inc., No. 11-792 (W.D. Tex. judgment and injunction entered Oct. 9, 2012)

What To Do if Racial Jokes Make Your Workplace Hostile

If you feel like you are the butt of racial jokes in your workplace, there are a few things you should do.

Complain to Management

One of the best ways to demonstrate that racial jokes are unwanted is to complain to the management. Your supervisors are legally required to take steps to end racial harassment in the workplace, but only if they know about it. You may be speaking for coworkers who aren’t able to object themselves. If no one objects, you may all have to continue to endure a hostile working environment.

Do Not Engage

Most racial discrimination cases aren’t one-time events. Often, courts require a pattern of behavior before racial jokes cross the line. That can put employees in the uncomfortable position of enduring racial commentary while waiting for the management to respond. It can be tempting to play along or return verbal punches. But doing so can destroy a person’s racial discrimination case. By trading jabs with your harasser, you make it seem like the comments are welcome, or not offensive. Do not engage! Instead, walk away or reiterate your complaints.

Document Everything

Documentation is the key to proving a racial discrimination case. Every time you complain to management or your union representative do it in writing (including email). Keep a copy for yourself. You can also start a journal, which will help you record day by day what racial jokes were used, who used them, and what happened because of them.

Talk to a Racial Discrimination Attorney

If your complaints go unheard, it’s time to get a professional involved. By talking to an experienced racial discrimination attorney early in the process, you can preserve your rights and improve your chances of changing the nature of your working environment.

At Eisenberg & Baum, our racial discrimination attorneys can help you negotiate with your employers, file Equal Employment Opportunity Commission (EEOC) complaints, and even go to court to protect your rights. We will fight to end racial harassment in your office. Don’t wait until the discrimination goes “too far.” Contact us today for a free consultation and start on the path to a racially sensitive workplace.