Archive for the ‘Race Discrimination’ Category

Federal and state protections against race discrimination apply to you when working for an employer, but are also relevant when you apply for a job with an employer. An employer may not discriminate against you in making a hiring decision based upon your race, gender, age, etc. Of course, proving the reason why they refused to hire you is another issue altogether. Although, its easier, as in the case of Bass Pro where they tell you why they are not hiring you.

The federal government has sued national outdoor retail chain Bass Pro Outdoor World alleging racial discrimination in its hiring practices dating back to 2005. The Equal Opportunity Commission, a federal agency charged with enforcing anti-discrimination laws in employment, filed a lawsuit in U.S. District Court in Houston on Wednesday. The lawsuit alleges that qualified African-Americans and Hispanics were routinely denied positions at Bass Pro stores and managers of stores in Houston, Louisiana and other locations made derogatory racial comments acknowledging the practice. The commission also alleges that Bass Pro destroyed documents related to applications and internal discrimination complaints and retaliated against those who spoke up.

Bass Pro denies all of the allegations and complains that the EEOC suit is prompted in part by the perception that people who like NASCAR and the outdoors are more likely to engage in discrimination.

If you believe you have been refused a job or promotion, based upon your race, age, sex or gender, feel free to file a Charge with the EEOC or call Scott Behren and the Behren Law Firm for a free consultation.

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A recent jury verdict against Xerox for almost $800,000 shows the repercussions an employer, such as Xerox, may suffer for retaliating against an employee who complains of discrimination in the workplace. Remember that most state and federal laws prohibit not only the discrimination itself, but also retaliation against any complaints of discrimination.

Hope Bailey-Rhodeman, an African-American female, claimed she had suffered retaliation when she had made an internal complaint of race and gender discrimination. Since she filed the claim, she was demoted to a sales position, but at the time of her complaint, she was a sales manager for Xerox and had a successful career spanning nearly 20 years. She had been promoted to sales manager, leading a team of 10 sales representatives who specialized in selling equipment and services to customer in state and local government.

Bailey-Rhodeman was consistently the highest ranked sales manager in her section, and was frequently one of the most highly ranked sales managers for the country. But all this changed in the summer of 2006, when Bailey-Rhodeman made an internal complaint to Xerox Human Resources, complaining that other managers were bullying her because she was an African-American female.

Her immediate supervisor learned of the complaint, and told Bailey-Rhodeman that he was angry at her for making him look bad, telling her “now you did it.” He then launched a retaliatory investigation of Bailey-Rhodeman. Without being interviewed, or even being told the specifics of the accusations against her, Bailey-Rhodeman was suspended, being accused of committing an unspecified “policy violation.” Three weeks later she was told she was being fired, but Xerox offered to pay her 12 weeks severance, if she would agree to quit. She refused, and threatened to sue the company.

In response, Bailey-Rhodeman was told that she was being removed from her sales manager job, but could accept instead a reassignment to a sales position where she would be stripped of all supervisory responsibilities. Otherwise, she would be fired. The reassignment was a demotion, which would result in a significant loss in pay. Nonetheless, without any job prospects, Bailey-Rhodeman took the reassignment, but continued to challenge the demotion.

After being demoted to the sales position, Bailey-Rhodeman lost approximately $100,000 per year in sales commissions. Her territory was split between two white males. At trial, Bailey-Rhodeman challenged her demotion as being in retaliation for her complaints of discrimination. The jury found in Bailey-Rhodeman’s favor on her retaliation claim, and awarded Bailey-Rhodeman $488,088 in lost past income, and $316,126 in lost future income.

Should you believe you have been the subject of discrimination in the workplace or retaliation, feel free to call Scott Behren and the Behren Law Firm for a free consultation to discuss available legal options to you.

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You may recall that I have blogged recently about EEOC complaints that credit checks on job applicants is potentially a violation of Federal discrimination laws. Well now there has been a class action lawsuit filed against the University of Miami based upon the credit checks it performs on job applicants.

The lawsuit, filed on behalf of Loudy Appolon of Miami, Florida, accuses the University of violating Title VII of the Civil Rights Act by rejecting or firing qualified individuals because of their credit background, even though credit history does not predict employment performance. In fact, there is no correlation between credit history and job performance or trustworthiness, and credit reports are often rife with inaccuracies.

Samuel R. Miller, a senior attorney at Outten & Golden LLP, said, “By all accounts, Ms. Appolon was well-qualified for the position – that’s why the University of Miami offered her the job. But instead of evaluating Ms. Appolon on an individual basis, as a person who – like many Americans today – may have struggled with and overcome some personal financial difficulties, and who showed promise to be an excellent employee, the Hospital stigmatized her based on her credit history. When companies act this way, they make it impossible for Americans to break the cycle of lending and bad credit, rebuild their lives, and contribute to their families and communities. And the employers hurt themselves by losing out on some of their best potential workers.”

Sarah Crawford, counsel with the Lawyers’ Committee for Civil Rights Under Law, stated, “The University of Miami’s policies and practices are illegal because they adopt and perpetuate the racial disparities in the credit system. We see this problem occurring in private and public employment across the country, despite the fact that employers, credit reporting agencies, and researchers have found no link between credit history and job performance. At a time when unemployment rates are skyrocketing, particularly for minority jobseekers, this unjustified and discriminatory practice only exacerbates the problem. Employers need to know that the practice is discriminatory and must end.” Ms. Crawford testified about the discriminatory effects of credit checks at an October 20, 2010 hearing of the Equal Employment Opportunity Commission.

According to the Complaint, “Defendants’ hiring policy duplicates the racial discrimination present in the credit reporting system . . . This discriminatory denial of employment affects not only the individuals who are rejected or terminated, but also their families and entire communities, replicating minority under-employment and compounding credit inequities in the process.”

The lawsuit alleges that Ms. Appolon interviewed for a senior medical collector position with the University of Miami, Miller School of Medicine in June 2009. She was offered the position, but the day before she was due to start her new job — after she had already resigned from her previous job — the University informed Ms. Appolon that she would not be hired because of her credit history. “I was shocked,” says Ms. Appolon. “I’ve worked in this industry for years, and my credit was never a problem.”

The case is “Loudy Appolon v. University of Miami, et al.” Class Action Complaint No. 1:10-cv-24166, in the U.S. District Court, Southern District of Florida.

If you have been denied a job based upon a background check on your credit history, you may want to speak with an employment lawyer to discuss your available legal remedies. Behren Law Firm can assist you with these types of issues.

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An interesting discrimination issue has arisen lately in the context of nursing homes. It has become a battle between residents and nursing home caregivers in many states including Indiana where the newest case arose. Apparently, in many instances, elderly nursing home residents are demanding that their caregivers only be of certain races.

A federal appeals court in Indiana has ruled that a nursing home cannot honor patients’ requests for caregivers based on race. The case — which pitted nursing home residents’ rights against discrimination law — establishes that there may be a limit to a nursing home resident’s right to choose a health care provider.

Brenda Chaney, who is black, worked at Plainfield Healthcare Center in Indiana as a certified nursing assistant. The nursing home housed a resident who said she did not want to be assisted by black nursing assistants. In response, the nursing home’s daily assignment sheet instructed the assistants that the resident preferred “no black” aides, and the nursing home banned Chaney from assisting her. The nursing home claimed it was following state law, which provides that nursing home residents have a right to “choose a personal attending physician and other providers of services.”

Chaney went along with the policy for awhile, but after she was fired she sued the nursing home for employment discrimination, arguing that its practice of honoring the racial biases of its residents was illegal and created a hostile work environment. The lower court ruled in favor of the nursing home, finding that its policy was reasonable based on its belief that ignoring the resident’s preferences would have violated state law.

The U.S. Court of Appeals for the 7th Circuit reversed the lower court’s decision, and ruled that the nursing home’s policy of allowing patients to dictate care providers based on race violated federal employment discrimination law. According to the court, “Plainfield acted to foster and engender a racially-charged environment through its assignment sheet that unambiguously, and daily, reminded Chaney and her co-workers that certain residents preferred no black CNAs.”

According to some elder rights organizations, this issue has been coming up regularly in almost every state in the United States. The federal appeallate court has now sent the message that discrimination laws trump the rights of elderly nursing home residents.

What do you think of this issue, should nursing home residents be allowed to pick the race of their caregiver? You don’t get to select at hospitals or restaurants or movie theaters so why should you be able to at a nursing home?

If you believe you have been the subject of race discrimination, contact an employment or discrimination law attorney.

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In the current job markplace, it has become increasing difficult to get a job. It is even more difficult for those with criminal backgrounds and or questionable credit or prior workers compensation injuries or claims. However, you should keep in mind that, if you are denied a job based upon any of these critera, you may have a legal basis to complain.

The Equal Employment Opportunity Commission has been cracking down on efforts to disqualify potential hires with criminal records or bad credit history, arguing that the practice can be tantamount to discrimination, as such applicants are disproportionately black or Latino. Justice Department statistics show that 38 percent of the U.S. prison population is black, compared with about 12 percent of the general population. In 2008, African Americans were about six times more likely to be incarcerated than whites. The incarceration rate for Latinos was 2.3 times higher than whites.

A blanket refusal to hire someone with a criminal record could run afoul of federal employment law, though. If criminal histories are taken into account, the EEOC says employers must also consider the nature of the job, the seriousness of the offense and how long ago it occurred. For example, it may make sense to disqualify a bank employee with a past conviction for embezzlement, but not necessarily for a DUI.

The EEOC indicated its disapproval of such practices last fall, when it it filed a class-action discrimination lawsuit against Dallas-based Freeman Companies, an events planning firm. The EEOC alleged that Freeman Companies used credit history and criminal records to discriminate against against blacks, Hispanics and males. Freeman has denied the charges, according to the AP.

You should also keep in mind that under Florida law and most other state laws, it is illegal to refuse to hire someone based upon a workers compensation claim or injury with a prior employer.

If a potential employer does perform a credit or criminal history check it must be done in accordance with the Fair Credit Reporting Act and you must have given permission to do so. If your work state does not have a law that prohibits or otherwise regulates an employment credit check on you (you should verify if your state has such a law), then the employment provisions in the Federal Fair Credit Reporting Act (FCRA) rule. The FCRA provisions regulate how employers obtain and use your credit report; for example, generally:

An employer must first inform you that someone will be conducting a credit check on you and get your permission in writing (unless you work in the trucking industry, in which case your permission might not be required). Technically, you may refuse to allow it; but, in reality, you might not keep your job or land a new one if you do that.

Before an employer may take an adverse action against you (e.g., eliminate you as a job candidate or fire you) based solely on a credit check, the employer must give you a “pre-adverse action disclosure” that consists of a copy of your credit report and a written summary of your rights under the Fair Credit Reporting Act.
After an employer has taken adverse action against you, the employer must then provide you with an “adverse action notice” and give you the contact information of the agency that provided your credit report, so that you may dispute inaccurate information.

An employer must keep the results of your credit check confidential and can’t store any information about it in your personnel file.

If you believe you have been wrongfully turned down for a job due to your criminal or credit history speak to an employment law attorney to evaluate your situation.

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Well some good news has come for employees recently in a legal decision from a Federal Court in Tennessee.  Now it may not be enough for an employer to merely have an anti discrimination policy and invoke it against employees making claims against it.  Now, employers probably have to actually follow the policy and train employees on the policy.

For over 10 years, employers have been able to avail themselves of an affirmative defense to sexual harassment allegations by an employee against a supervisor/manager.   This defense is known as the Faragher/Ellerthdefense, and can be invoked where the employer can demonstrate that: (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 764-65 (1998). The vast majority of employers have anti-harassment policies including reporting procedures and protocols for employees to follow, have disseminated those policies and procedures to all employees, and have required employees to acknowledge receipt of the policies. However, the adoption, dissemination and acknowledgment of receipt of the policy by the employee may not be sufficient for employer to invoke the affirmative defense.

Recently, in Bishop v. Woodbury Clinical Laboratory, No. 3:08-cv-1032 (M.D. Tenn. 2010), the court rejected the employer’s Faragher/Ellerth affirmative defense despite the fact that the employer had an existing anti-harassment policy that was published and provided to all of its employees. The employee admitted that she had received the policy and had been directed to read it. She claimed, however, that she did not read the policy or understand the reporting requirements. The court noted that there was no evidence offered to demonstrate that the employee or her supervisor received any training on the sexual harassment policy and reporting obligations. Thus, the court concluded that the employer failed to establish that it was entitled to invoke the Faragher/Ellerthaffirmative defense as it could not demonstrate that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior.

Whether other courts around the country follow this trend remains to be seen, but at least it gives some hope to employees who are always fighting against employers’ claims that they could not have possibly discriminated because they have an anti-discrimination policy.  After all this is perfectly logical reasoning right?

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Many employees come to my office to consult with me about sexual harassment or discrimination based upon race, pregnancy, gender or age. On some occasions, the employee may still be employed by the employer. In those instances I always encourage them to file complaints or reports with human resources to allow the employer to use its internal procedures to address the problem. In the event that the employer does not address the issues, I will than encourage the employee to file a Charge of Discrimination with the EEOC.

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered.

The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.

An EEOC Charge can either be filed with the assistance and representation of counsel or by the employee on their own. If you do it on your own, the EEOC will give you the forms and guidance on how to prepare the Charge of Discrimination. Once a complaint is made to HR or the EEOC, the employer is not legally allowed to retaliate or discriminate against you for making these complaints. However, that does not always mean the employer will follow the rules so you should keep careful notes and documentation of all complaints made, to whom you made them, and any actions taken against you as a result of these complaints.

The EEOC has a link on its website that you can use to do an online assessment of whether or not you should bring a charge with the EEOC. The link is at https://egov.eeoc.gov/eas/.

It is important to know however that if you choose to file an EEOC Charge, you must do so within 180 days or 300 days of the claimed discrimination or harassment, so don’t wait too long to take this action. You get 300 days if your state has a an agency similar to the EEOC such as in Florida, there is the Florida Commission on Human Relations (“FCHR”). You can fill out a charge in person at one of the EEOC offices or do it by mail.

Once the EEOC Charge is filed, the Equal Employment Opportunity Commission, a federal agency, has a staff of investigators who investigate your complaints. The employer is supposed to receive a copy of your Charge within ten days. They allow the employer an opportunity to file a formal response and generally will then ask for a reply from the employee. Sometimes, they will seek to interview the employee in person or over the telephone to get more information for their investigation. Sometimes the investigators will seek documents from the employer. Sometimes the EEOC will offer the parties to mediate the claims prior to further investigations. Keep in mind that if you choose to file an EEOC charge on your own, without an attorney, you will not have the support and guidance of an attorney to help you through this process.

Once the EEOC completes its investigation, they will issue either a “cause determination” finding that they believed discrimination took place or will issues a “Notice of Suit Rights” which states that although they don’t believe discrimination took place, you can file a legal action against the employer if you choose to do so. If the EEOC issues a “cause” determination, they can choose to file a lawsuit on your behalf, but are not required to do so.

Upon receipt of your Notice from the EEOC, if you are going to file a lawsuit, you must do so quickly since any Federal claims under the ADA, Title VII, the Pregnancy Discrimination Act, etc must be filed within 90 days. In Florida and other states, there are also state statutes which provide you a longer time to file suit.

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