May an employer deny employment to a Black applicant who would not cut her dreadlocks? A decision by the Eleventh Circuit yesterday goes to the very core of the anti-discrimination statutes: what does it mean to discriminate in employment on the basis of "race"? The panel unfortunately holds that "race" under Title VII is limited to "immutable" physical characteristics, rather than cultural and other traits associated with race. In so doing, it potentially creates a rift between two major federal race-discrimination statutes, Title VII and § 1981.
The dubitante judicial opinion affirms a result, but casts suspicion on the underlying law or basic fairness of the decision. Two recent, split Title VII opinions fall into this category. The Seventh Circuit declined to overrule its decades' old precedent holding that Title VII does not cover sexual-orientation discrimination, and the D.C. Circuit applied its case law that denials of lateral transfers are generally not "adverse employment actions." Yet both opinions sow the seeds for future challenges to these questionable and unfair outcomes.
The D.C. Circuit, in a Title VII race-discrimination case, hands down a mixed decision for an Environmental Protection Agency (EPA) employee. It reverses summary judgment on her challenge of a suspension, holding that she was entitled to a trial where there was evidence that the lower-level decisionmaker who prompted the action made racially-biased remarks, especially one directed at the plaintiff. Yet it affirms dismissal of her termination claim, concluding that the plaintiff failed to exhaust the exacting administrative requirements that apply to federal-sector workers.
In The Butler's Child, Outten & Golden Senior Counsel Lewis Steel describes his career spent seeking racial justice as a civil rights lawyer. The book, to be released on June 14th, is a fascinating chronicle of many landmark cases, and a fitting reminder of the continuing fight against racial discrimination in employment, housing, criminal law, governmental services, and education.
Is there Title VII "race" discrimination if the two competing candidates identify as "white"? The Second Circuit holds that this scenario may state a claim where one of the candidates is deemed to be of "Hispanic" ethnicity.
The D.C. Circuit addresses an all-too-common scenario where the employer - without apparent explanation - arguably comes down hardest on the Black employee rule-breaker. The court reverses summary judgment in a case involving nurses, where the Black nurse was allegedly singled out and fired for violations of protocol during a single shift.
Ban the Box legislation is an incredibly important tool in fighting black underemployment by removing employers' ability to use criminal history as a proxy for discrimination. However, it only attacks a symptom of the problem of race discrimination in hiring: criminal history is not the only way that employers use "race-neutral" criteria as a proxy to discriminate against black job seekers. A holistic approach that acknowledges the omnipresent role that the black criminality myth continues to play in employment discrimination - and daily life in general - is necessary.
The Fourth Circuit en banc finally undoes an enduring wrong by overruling Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006), and holding that an employee remains protected by Title VII's anti-retaliation section (and § 1981) when complaining about race harassment, even if the offending conduct has not yet ripened into a hostile work environment.
When two employees fight, employers face the challenge of making the discipline fit the crime - and, also, avoiding racial or other bias. The Sixth Circuit calls out management in one such case today, concerning a black plaintiff fired supposedly for engaging in a fight, while the white employee in the same fight was disciplined only belatedly.
The Fifth Circuit issues yet another reminder, in today's Title VII decision, that an employer who stoutly refuses to offer any explanation for a decision to deny a promotion takes a strong chance of having to justify its actions at a jury trial.