Discrimination Based on Inter-Racial Marriage, Quirky Question # 77
Quirky Question # 77:
One of our employees, who is Caucasian, recently complained that his manager has been treating him unfairly in a variety of ways. He claims that his manager is discriminating against him because he is married to an African American woman. Putting aside the issue of whether the manager actually is treating him unfairly, does Title VII even encompass discrimination on the basis of inter-racial marriage?
The specific question you posed was, “Does Title VII . . . encompass discrimination on the basis of inter-racial marriage?” Your lead-in to that question, however, (“Putting aside the issue of whether the manager actually is treating him unfairly . . ..”) is somewhat troubling.
As I have suggested in other Blog analyses, employment issues often implicate at least two fundamental issues – what is legally permissible and what is right in a broader, ethical sense. Frequently, the legal and ethical analyses align but that is not always true. Sometimes, the law lags behind.
The starting point for my analysis, therefore, would be to ask you a question – if you assumed that Title VII did not prohibit discrimination based on inter-racial relationships, how would your company address this situation? I would hope that your response would be that your company would promptly and carefully investigate this situation, and if it determined that your managerial employee was treating your other employee unfairly or discriminatorily based on his inter-racial marriage, institute appropriate disciplinary action. Depending on the facts elicited in your company’s investigation, the appropriate discipline may well be discharge.
If your company’s reaction was the opposite, i.e., ‘if it’s not illegal, we’re not going to act,’ I’d simply ask, “Why not?”. Do you really want to employ a managerial employee who is so bigoted that he would treat one of your other employee’s unfairly simply because he is married to a woman of another race? Do you believe that denying equal opportunities to an employee based on the race of his marriage partner, rather than his intellect, diligence, integrity, work ethic, or any other performance-related factors, would likely contribute to a more competent and effective workforce?
Another factor for your consideration is how a biased decision-maker (and the biased decisions he makes) is likely to affect the morale of your company’s workforce? How would your minority employees react to this type of decision-making? Or, as a corollary issue, would you have confidence that someone who discriminates against one of your employees based on the race of his spouse would be likely to treat your minority employees equitably?
Finally, situations that implicate fundamental questions relating to racial equality or that smack of unfairness are likely to lead to litigation. Play out this scenario from a pessimistic perspective. Imagine airing the issues relating to your company’s treatment of minorities and/or majorities married to minorities in court. Or in the newspaper or other public media. Would you be comfortable with how your company would be portrayed?
Well, enough of my posing questions back to you; let me turn to the legal question you asked. The issue of whether Title VII reaches individuals involved in inter-racial marriages is a question that the courts have addressed periodically since Title VII was passed in 1964. As you may have guessed, the judicial analyses in the late-60s and ’70s found that Title VII did not reach this type of discrimination. In the earlier decisions, the courts noted that Title VII’s prohibition (“unlawful . . . for an employer . . . to discharge any individual . . . because of such individual’s race” 42 U.S.C. § 2000e-2(a)(1)), simply did not extend to discrimination based on those with whom the adversely affected employees (typically, Caucasian) associated, whether by marriage or otherwise.
More recently, however, the judicial analysis has shifted. Courts in a number of jurisdictions have held that Title VII reaches discrimination based on an employee’s marriage to a member of another race. A good example of such a decision is the case of Holcomb v. Iona College, No. 06-3815-cv (2dCir. April 1, 2008). Interestingly, a number of courts that have explored this type of associational discrimination have concluded that the discriminatory conduct falls squarely within Title VII’s proscription of discrimination based on the “individual’s race.” For example, as one court held, “Plaintiff has alleged discrimination as a result of his marriage to a black woman. Had he been black, his marriage would not have been interracial. Therefore, inherent in the complaint is the assertion that he has suffered racial discrimination because of his own race.” Rosenblatt v. Bivona & Cohen, P.C., 946 F. Supp. 298, 300 (S.D.N.Y. 1996). The Second Circuit adopted this same analysis: “We reject this restrictive reading [i.e., statute does not reach this conduct] of Title VII. The reason is simple: where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” (Emphasis in original.)
The Holcomb facts are interesting and highlight a few of the points I referenced above. In that case, Iona College terminated the employment of two of its three assistant basketball coaches. One of these coaches (Holcomb) was married to an African American woman. The other coach who was fired was African American. The one assistant coach who was retained, the most junior of the three, was Caucasian. As part of Holcomb’s allegations, he cited to a variety of crude racist comments made by one of the individuals involved in the decision to terminate him, the school’s former Athletic Director (since promoted to one of three Vice President positions at the college). Typical of many discrimination cases, several other individuals who had heard this individual make racially insensitive remarks also came forward with this evidence. Needless to point out, these well-publicized facts cannot be beneficial to Iona College.
Despite the evidence adduced by Holcomb, the District Court granted the College’s summary judgment motion. Though the District Court found that Holcomb had established a prima facie case of discrimination, the lower court also found that the College had advanced non-discriminatory reasons for its discharge decision (the poor performance of the basketball team, the off-court problems of the players, etc.).
In reversing the summary judgment grant, however, the Second Circuit emphasized that in a mixed motive case, the plaintiff is not required to prove that the employer’s stated reason was a pretext for discrimination. “A plaintiff alleging that an employment decision was motivated both by legitimate and illegitimate reasons may establish that the ‘impermissible factor was a motivating factor, without proving that employer’s proffered explanation was not some part of the employer’s motivation.’” (Citations omitted.) The appellate court concluded that Holcomb had come forward with sufficient evidence to present his case to the jury and that the jury could find that the College’s proffered reasons for its actions were not credible.
In sum, if your investigation reveals that your manager truly is discriminating against your employee because he is married to an African American woman, I think your company would be justified in terminating this individual. And, if your company elects not to take this action, as the Holcomb decision and other cases demonstrate, you soon could be defending a Title VII lawsuit. Many courts have held that Title VII reaches this type of discriminatory conduct.
In Holcomb, the Second Circuit stated, “We hold, for the first time, than an employer may violate Title VII if it takes action against an employee because of the employee’s association with a person of another race.” As the appellate court pointed out, the Fifth, Seventh and Eleventh Circuits agree. Similarly, the Second Circuit observed that the District Courts within the circuit that had addressed this issue had determined that Title VII reached this type of discriminatory conduct.