A rare "color" discrimination case under Title VII makes its way up on appeal. The district court, erroneously treating the case as one of race discrimination, granted summary judgment - but the Fifth Circuit reverses in a terse six-page opinion. The evidence included an affidavit from a former employee stating that casino management would not let "a dark skinned black person handle any money," and "that they thought Esma Etienne was too black to do various tasks at the casino."
Etienne v. Spanish Lake Truck & Casino Plaza, LLC, No. 14-30026 (5th Cir. Feb. 3, 2015): Title VII forbids discrimination in "terms, conditions, or privileges of employment, because of such individual's race [and] color," though the "color" part is often overlooked. On those occasions when minority management (supposedly) discriminate against other minority members, though, color may be a factor.
So here, the record indicated that the plaintiff was not promoted because the general manager (named Terradot) and his spouse mistrusted Etienne because of her skin color.
"To support her allegations, Etienne submitted the affidavit of Jeannene Johnson, a former manager of Spanish Lake. The affidavit states that Terradot allocated responsibilities to Spanish Lake employees according to the color of their skin, that Terradot would not let 'a dark skinned black person handle any money,' and that Terradot and his wife on several occasions told
Johnson 'that they thought Esma Etienne was too black to do various tasks at
The district court granted summary judgment, believing that this evidence did not present a prima facie case; according to the Fifth Circuit, the judge below "relied heavily on the fact that most of the managers at Spanish Lake were of the black race."
But the Fifth Circuit reverses. Analyzing Johnson's affidavit, the court holds that - if believed - the statements by Johnson quoting Terradot constituted direct evidence of a discriminatory motive and that nothing more is required to prove the claim:
"According to Johnson's affidavit, Terradot - Spanish Lake's general manager who was charged with filling the managerial opening-allocated responsibilities to Spanish Lake employees according to the color of their skin, did not allow 'dark skin black person[s to] handle any money at' Spanish Lake, and told Johnson 'on several occasions' that he 'thought Esma Etienne was too black to do various tasks at the casino.' This last statement, if made, is direct evidence that color is likely to have played a role in Spanish Lake's employment decisions. Put differently, 'no inference or presumption' is required to get from this statement - that Etienne was 'too black to do various tasks at the casino' - to the conclusion 'that race was a basis in employment decisions' made at Spanish Lake with regard to Etienne." [Citation omitted.]
The panel also rejects the employer's argument that these admissions constituted inadmissible "stray remarks":
"Terradot's comments explicitly reference Etienne's color; they were made by
Terradot, the person who indisputably had authority over the managerial
hiring process; and they are related to the challenged employment decision in
that they have to do with who can handle money at Spanish Lake, a task that
neither side disputes is required of the manager position. Only the second,
proximity-in-time factor raises a concern, since Johnson's affidavit is unclear
when Terradot made his comments. Nonetheless, the affidavit alleges that the comments were made 'on several occasions,' that Terradot 'determined' his employees' duties based on the color of their skin, and that Terradot 'would not allow' a dark-skinned black person to handle money at Spanish Lake."
Finally, owing to the admission (if believed) that management discriminated on the basis of color, Etienne under Title VII bore no duty to prove that the person it promoted was less qualified. Under Title VII, the burden shifted to the employer to disprove a discriminatory motive: "[T]o prevail on summary judgment, Spanish Lake must do more than merely identify a legitimate basis for its decision - it must show that any reasonable jury would conclude that it would have made the same decision absent the discrimination." [And, in fact, even this showing would not void the employer of legal liability; it would simply limit the remedies available to Etienne. So on this point, the panel misspoke.]