Category Archives: Race Discrimination

Quirky Question #287: “Cat’s Paw” Claims – How could an employer violate antidiscrimination laws, even though the decision-making manager has no discriminatory bias at all?

Question: We just went through a five-person layoff, and one of the individuals laid off (an African American) has hired a lawyer and is threatening to sue for racial discrimination. I have enormous confidence in the fairness of the individual manager making the layoff selections, and those selections were based on years of performance ratings.  However, the lawyer hired by our ex-employee says that doesn’t matter, because the ex-employee’s direct supervisor was racially biased.  He says that the bias of the direct supervisor taints the entire process and that the manager was merely a “cat’s paw.”  Let’s assume for a moment that the direct supervisor is a little rough around the edges.  Do we have a problem here, even though the manager is fair and unbiased?  And what the heck is a “cat’s paw” anyway? Answer→

EEOC Guidance On Use of Criminal History in Employment Decisions

When Is a Proscription on Convictions an Impermissible Predilection?  EEOC Issues New Guidance on the Use of Criminal History in Employment

Earlier this week, the United States Equal Employment Opportunity Commission (“EEOC”) issued updated Enforcement Guidance (“Guidance”) regarding the circumstances under which employers permissibly may, under Title VII of the Civil Rights Act of 1964 (“Title VII”), rely on arrest and conviction records in employment decisionmaking. See EEOC, Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (April 25, 2012), http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. The Guidance, while clarifying the agency’s position on this issue, also portends additional burdens for employers who need or want to consider applicants’ and employees’ criminal records. Answer→

Discrimination on the Basis of Color, Quirky Question # 134

Quirky Question # 134:

My company is planning a reduction in our workforce, which largely consists of African-Americans.  I understand that when a company conducts a mass layoff, it should make sure the layoff does not disproportionately affect older workers, women or men, or employees of a particular race, or else the company risks being accused of discrimination.  But doesn’t the law also protect employees from discrimination based on color?  If so, do we also need to worry about letting go a disproportionate number of “dark-skinned” or “light-skinned” employees?  How would we even go about measuring this?  I know our African-American workforce consists of a broad spectrum of skin tones.
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Ricci v. DeStefano, Supreme Court Ruling In Adverse Impact Case

Ricci v. DeStefano, Supreme Court Holds Employer Liable for Trying to Avoid Claims of Adverse Impact Discrimination

On June 29, the United States Supreme Court issued its highly-anticipated and highly-divisive decision in the “white firefighters case,” Ricci v. DeStefano, 557 U.S. __ (2009). This 5-4 decision may have significant implications for both “disparate impact” and “disparate treatment” discrimination claims.

Disparate-treatment claims present the traditional case of intentional discrimination. Disparate-impact claims attack a neutral policy or practice that has a disproportionately negative impact on the basis of race, gender, or some other statutorily-protected characteristic. Notably, disparate-impact claims do not require proof of an intent to discriminate. In Ricci, the Supreme Court held that actions influenced by race or some other protected characteristic, even if taken in a good-faith effort to avoid possible disparate-impact claims, will subject an employer to claims for disparate-treatment discrimination except in very narrow circumstances. Answer→

Associational Discrimination, Quirky Question # 87

Quirky Question # 87:

Some time ago, you wrote an analysis about discrimination on the basis of inter-racial marriage.  We are confronting a slightly different problem.  Several of our Caucasian employees have complained that they have been discriminated against because of their friendships with their African American co-workers.  These individuals are not married to the African Americans and they have not even said they spend time with them away from work.  But, they are claiming discrimination nonetheless.  Similarly, they have complained that they are offended by some of the language used by some of their Caucasian co-workers with respect to minority employees who work at our company.  Do they have a potential claim?  Does Title VII reach claims brought by Caucasians who are complaining about treatment of minorities? Answer→

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? Answer→

California Oddities, Quirky Question # 75

Quirky Question # 75:

We are a California employer and were just hit with a lawsuit by a former employee for acts that supposedly took place almost three years ago.  Our former employee alleges that in January 2006, his supervisor asked him to fire three Asian-Americans who work in an otherwise all Caucasian department.  The former employee alleges that he refused to follow his supervisor’s directive and did not fire anyone.  (Incidentally, this was the same supervisor who hired the employee who now is suing us.)

Our former employee also contends that from January 2006 through January 2008, he received very poor performance evaluations from his supervisor, which he attributes to his unwillingness to fire the three Asian-American employees.  Despite his “belief” about the supposed link between his performance reviews and his refusal to fire anyone, he never complained to our Human Resources Department or anyone on our management team.  He claims he had conversations about his supervisor’s behavior with one of his subordinates, an Assistant Manager who reported to him.

In February 2008, he quit without notice.  He immediately filed an administrative complaint with the Department of Fair Employment and Housing (DFEH), alleging race and age discrimination.  The DFEH conducted an investigation which ended in December 2008, and issued a right to sue letter soon thereafter.  We just were served with the Complaint, some three years after the primary incident on which his lawsuit is based.

First, can he file a race discrimination claim even though he is not Asian?  Second isn’t his lawsuit time-barred?  (I thought these types of lawsuits were limited to a one year statute of limitations.)  Finally, given that the employee did not take advantage of our very extensive internal complaint procedures (designed to address precisely these kinds of issues), doesn’t his failure to utilize this internal complaint process bar his claims? Answer→