Racial coding continues in the workplace today, the jotting of surreptitious entries on job applications to avoid hiring disfavored minorities. And in this case, even when the evidence was staring the trial judge in the face - plaintiff's unsuccessful application said "black" in handwriting, and no witness from the employer offered an explanation why - the judge still found that there was an innocent explanation for it. The Seventh Circuit tosses a bench verdict in favor of the employer, decreeing that the trial judge must reconsider evidence that clearly favored the employee's claim of race discrimination.
Whitfield v. Int'l Truck & Engine Corp., No. 13-1876 (7th Cir. June 6, 2014): In 1996, plaintiff's application to work as an electrician was not acted upon by the employer International Truck and Engine (known by the trade name, Navistar). Supposedly the union could not verify the requisite eight years of employment experience for the position. In 1998, he resubmitted his application, by which time there was no dispute that he met the posted requirements.
With the 1998 application, the entry was first discovered by Navistar's electrical foreman, Willie Jones:
"While returning the file to Navistar with notice of Whitfield's clearance, Jones opened Whitfield's folder and saw that the word 'black' was written on the application's cover sheet. Surprised, Jones asked Navistar's Human Resources manager, Jeff Thatcher, why the word appeared on the file. Thatcher could not explain why the cover sheet was there and said it must have been a mistake."
Five white electricians were hired ahead of Whitfield. Among reasons Navistar offered at trial for not hiring Whitfield were supposed errors in his 1996 resume (which were not, in fact, errors) and a purported lack of Programmable Logic Controller (PLC) experience (which was not part of the job description).
Whitfield's case was originally part of a larger case, involving 26 plaintiffs, alleging a racially hostile work environment. Evidence included "symbols of racial hatred (including nooses), photos of racially hostile graffiti and racially offensive slogans scrawled around the Plant," plus evidence that management did not punish the white employees carrying out the harassment, and that blacks were excluded from the skilled trades. Despite the apparent pertinence of this evidence to the question of Navistar's racial motivation, the district court excluded such evidence at trial. (The larger case itself settled.)
Faced with the application that said "black" in handwriting, the judge - functioning as trier of fact - held "that Whitfield's evidence did not imply any discrimination, that Whitfield did not meet Navistar's unstated qualifications for the job, and that he did not offer any compelling comparator evidence."
The Seventh Circuit reverses and remands for further findings. Principally, it holds that the application with the word "black" on it offered reason enough to think that race was a factor in the employee's termination. It rejected the district court's attempt to contrive a valid explanation for the jotting:
"The district court, despite having no evidence from Navistar for support, concluded that Whitfield's file could have had 'black' written on it for affirmative action purposes, reasoning that Whitefield's file indicated his race to allow Navistar to comply with its affirmative action program. But Navistar's own human resources manager, Jeff Thatcher, admitted that he did not know of any reason why 'black' was written on Whitfield's file and that it must have been a mistake. Navistar did have an affirmative action program, but it did not collect race information by labeling applicants' files with their race. Moreover, Navistar's diversity manager Roy Civils testified that it would not be proper for information regarding a candidate's race to be sent to the Union for the candidate evaluation process."
The district court compounded the error by turning a blind eye to the "rather extensive evidence of the racially hostile environment within which this cover page was attached to Whitfield's personnel file."
In what the Seventh Circuit termed an even "more egregious error," the district court gave determining weight to Navistar's having hired - in the interim - one black electrician, a woman named Jackson. Nonetheless, Jackson herself had been hired only after eleven white electricians were hired ahead of her, and was the very first black electrician hired in decades. As the panel notes, "While the district court does have some degree of discretion in weighing evidence, it clearly exceeded that discretion when it determined that Jackson's hiring "negat[ed] any inference that Navistar failed to hire Whitfield due to his race." Jackson herself also experienced a severe racially hostile environment.
The panel goes onto to hold that Whitfield presented further indirect evidence of discrimination, including his superior credentials over the white electricians who were hired, and that the reasons given for not hiring Whitfield were unsupported by the record. Furthermore, the district court erred in considering Navistar's reasons because it never identified who decided not to hire Whitfield. "Navistar was never able to identify the individual who made the final decision to not hire Whitfield. Thus, it is impossible for the court to conclude that the reason he was not hired was due to either the errors in his resume or lack of PLC experience."
"Making matters worse, the evidence shows that Whitfield had more PLC experience than many of the white electricians hired during the relevant time period. It is rather odd then that the district court would rely so heavily on Navistar's desire for electricians with PLC experience when the record shows that several new hires had none. Navistar's purported justification seemingly does more to show pretext, than it does to show Whitfield was not actually qualified."
Indeed, the district court even ignored evidence that Whitfield possessed such PLC experienced, while white electricians who were hired did not.
Finally, the panel questions the district court judge's exclusion of the background evidence of racial harassment and systemic exclusion of blacks from the skilled trades. For all of these reasons, the panel finds that the district court abused its discretion in excluding evidence favorable to Whitfield and weighing the rest of the record clearly erroneously.