Racial discrimination poses a large problem in the American workplace and many people are unaware of it. Today, the national policy of nondiscrimination is firmly rooted in the law. In addition, it generally is agreed that equal opportunity has increased dramatically in America, including in employment. Blacks and other people of color now work in virtually every field, and opportunities are increasing at every level. Yet, significant work remains to be done Racial discrimination is a huge problem that seems to be getting worst as more employees are filing cases with various agencies commissioned to uphold Title VII and other nondiscrimination laws and policies. The theoretical problem that surrounds this topic is that sometimes stereotyped thinking is at the core of racial decision-making by employers. Laws that prohibit racial discrimination are presented along with note-worthy cases that show their relevance to the topic presented. The Employment Tribunal identifies ten factors that may influence the outcome of racial discrimination cases and enlightens the reader with more barriers to justice for racial discrimination. (Skristin, M., n.d.). Federal laws prohibiting racial discrimination would lead the reader down a paper trail that shows that racial discrimination is on the rise. We will be looking at 3 federal cases and their outcomes. Also, discussed here are some very important laws that deal specifically with discrimination, like the NAACP and there are 2 cases cited for review. Certain racial discrimination events would prove that employer disciplinary actions are just a pretext underlying racial discrimination. The figures on successful claims at Employment Tribunal are low. ‘The Employment Tribunals Annual Report for 2008/9 showed that of 3970 race discrimination cases submitted to the tribunal only 1074 reach employment tribunal stage, of these 694 were struck out, 236 lost at hearing and only 129 were successful at hearing.
This amounts to a 3% success rate for race discrimination claims, which is the success rate for all discrimination claims on an annual basis.’ The Government is currently considering whether to increase the qualifying period for unfair dismissal claims from 1 to 2 years. They could employ you, then get rid of you before the two years is up. Added to plans to charge to bring claims & you may as well tell employers to treat black people as badly as they like. Their reasoning is this: ‘In the three years to 2009-10, some 20,100 claims were struck out by a judge, nearly one in 10 of the 227,00 claims completed, according to official figures. A further 73,000 cases, or 32%, were withdrawn by the individual, usually where both sides had reached an out-of-court settlement, the latest Tribunals Service statistics show. What is not taken into consideration is the number of cases that are withdrawn because of the extremely limited access to legal aid or any kind of assistance for workers in these cases. Employees have often been dismissed so are already struggling financially. Employers are the ones with funds at their disposal, to fight their employee’s case. Employers use their solicitors and/or legal services to exhaust the claimant financially and mentally, which is the reason that a lot of cases are withdrawn. Solicitors are reluctant to take on Employment Tribunal cases, even on a ‘no win no fee’ basis, unless they are certain that they can win. According to the Employment Tribunal Service, (January and December, 2004), ten factors can be identified that may influence the outcome of racial discrimination cases: The first is the characteristics of the claim and proceedings; •the nature of the evidence presented
•the relationship between direct and indirect discrimination •the relationship between discrimination and unfair dismissal claims •the relations between racial and any other forms of discrimination •the type of representation and the tribunal’s interaction with unrepresented complainants •the ability of complainants to obtain information from respondents. The second is the reasoning of the tribunal:
•the location of burden of proof
•the weight given by tribunals to judgments of credibility •how the tribunal interprets justifiability of indirect discrimination •References by the tribunal to intention and motivation of alleged discrimination. The Employment Tribunal In Chagger v Abbey National plc & Hopkins 2006 noted that Mr. Chagger had tried to address his allegations of race discrimination directly with Abbey National and Mr. Hopkins, through the company’s own complaints and grievance procedures. However, Abbey National had not provided Equal Opportunity training to any of the managers it allocated to hearing and deciding on Mr. Chagger’s issues, there was a culture at Abbey National of tending to deny and refuse Mr. Chagger’s issues, and Mr. Chagger’s issues were dismissed out of hand. Outcome: The Tribunal criticized both Mr. Wilson and Mr. Brener in particular (two of the senior managers that heard and decided on Mr. Chagger’s issues) for appearing to believe that if there was no overt ‘racial prejudice’ then there could be no then there could be no race discrimination. The Tribunal found that Abbey National was in breach of the steps recommended by the statutory Code of Practice on Racial Policy in Employment by not providing the managers with Equal Opportunity training. The U.S. Equal Employment Opportunity Commission’s (EEOC) mission is to promote equality of opportunity in the workplace and enforce federal laws prohibiting discrimination in employment. Its regulatory program supports effective enforcement of six employment nondiscrimination laws: •Title VII of the Civil Rights Act of 1964, as amended;
•the Equal Pay Act of 1963, as amended;
•the Age Discrimination in Employment Act of 1967, as amended; •Titles I and V of the Americans with Disabilities Act, as amended; •Sections 501 and 505 of the Rehabilitation Act, as amended; and •Title II of the Genetic Information Nondiscrimination Act. EEOC also provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies. The EEOC statistic from last year showed 26,740 discrimination cases reported in America. Racial discrimination in America is considered any act against an individual while recruiting, hiring, or job training. Many other forms include these examples: work performance measures, wages, promotions, work conditions, or any other unlawful employment bias discharge. In enforcing Title VII’s prohibition of race and color discrimination, the EEOC has filed, resolved, and adjudicated a number of cases since 1964. Below is an in exhaustive list of significant EEOC private or federal sector cases from 2003 to present. These cases illustrate some of the common, novel, systemic and emerging issues in the realm of race and color discrimination. 1.1. EEOC v. Integrated Broadband Services, No. 1:10-03106 (N.D. Ga. settled Apr. 5, 2011). In April 2011, a provider of operational support software and back office services deployed by cable and broadband operators worldwide agreed to pay $60,000 to settle a race and national origin discrimination lawsuit. In September 2010, the EEOC had filed the lawsuit alleging that the company fired a Black Tanzanian network operations analyst because of her race and national origin. The analyst was terminated allegedly because she left work 30 minutes early to beat the traffic. However, the employer did not fire a Caucasian employee who they left two hours early on two different days because he was tired. Outcome: The consent decree also includes provisions for equal employment opportunity training, reporting, and posting of anti-discrimination notices. 1.2. EEOC v. Roadway Express, Inc., and YRC, Inc., Nos. 06-CV-4805 and 08-CV-5555 and Bandy v. Roadway Express, Inc., and YRC, Inc., No. 10-CV-5304 (N.D. Ill. Dec. 20, 2010). In December 2010, Roadway Express, a less-than-truckload motor carrier with terminals throughout North America, settled the claims of two lawsuits alleging racial harassment of Black employees and race discrimination in terms and conditions of employment at two Illinois facilities. The claims included: (1) awarding Black employees less favorable assignments (both terminals); (2) assigning them more difficult and demanding work (both terminals); (3) enforcing break times more stringently (Chicago Heights); (4) subjecting their work to heightened scrutiny (Chicago Heights); and (5) disciplining them for minor misconduct (both terminals).
Roadway also assigned Chicago Heights employees to segregated work groups. Outcome: The 5-year decree, which applies to Roadway and YRC, Roadway’s identity after it merged with Yellow Transportation, includes $10 million in monetary relief, $8.5 million to be paid upon preliminary approval of the decree and the remainder in three subsequent installments due on or before November 1 of 2011, 2012, and 2013. In addition to prohibiting race discrimination and retaliation against Black employees at YRC’s Chicago Heights facility, the decree also requires YRC to provide all Chicago Heights employees annual training on racial harassment and race discrimination and engage a Work Assignment Consultant and a Disciplinary Practice Consultant to assist it in reviewing and revising the company’s work assignment and disciplinary policies and practices at the Chicago facility. 1.3. EEOC v. Austin Foam Plastics, Inc., No. 1:09-CV-00180 (W.D. Tex. Oct. 15, 2010). In October 2010, Austin Foam Plastics, Inc., (AFP) a producer and distributor of corrugated box and cushion packaging, agreed to pay $600,000 to resolve a number of racial and sexual harassment charges. In pertinent part, the EEOC alleged that Black employees at AFP were subjected
to intimidation, ridicule, insults, racially offensive comments and jokes, and cartoons and images that denigrated African-Americans. White employees and managers regularly emailed racially derogatory jokes, cartoons, and other materials to coworkers, and posted racially offensive photographs on the bulletin board outside the human resources office. Outcome: The 2-year consent decree also enjoins race and sex (male) discrimination under Title VII, as well as retaliation. Defendant will submit to EEOC an EEO policy that prohibits race and sex discrimination and retaliation. Defendant will file annual audit reports with the EEOC summarizing each complaint of race or sex (male) discrimination, or retaliation, it receives at its Pfluggerville, Texas location and its disposition. 4. EEOC v. Elmer W. Davis Inc., No. 07-CV-06434 (W.D.N.Y. consent decree filed Aug. 10, 2010). In August 2010, the EEOC and the largest commercial roofing contractor in New York State settled for $1 million an EEOC suit alleging the company discriminated against a class of Black workers through verbal harassment, denials of promotion, and unfair work assignments. According to the lawsuit, EEOC alleged from at least 1993 to the present, a White foreman repeatedly used racial slurs toward Black workers that the company assigned Black employees to the most difficult, dirty, and least desirable jobs, that the roofing contractor systematically excluded Black employees from promotion opportunities, and that the company retaliated against those who complained. Additionally, nooses were displayed and portable toilets featured racially offensive graffiti with swastikas and “KKK” references at the job sites, EEOC alleged. Although it admitted no wrongdoing and said that it settled the case for financial reasons, the company agreed to hire an equal employment opportunity coordinator to provide employee EEO training, monitor future race discrimination complaints, and file periodic reports with EEOC regarding hiring, layoffs, and promotions. 5. EEOC v. Presbyterian Homes, Case No. 07 C 5443 (N.D. Ill. Nov. 28, 2007). In November 2007, a high-end suburban Illinois retirement facility agreed to pay $125,000 to settle a discrimination lawsuit alleging that it terminated its director of nursing, because of her national origin (Filipino) and race (Asian). Outcome: The federal district court approved a two-year consent decree requiring the facility to provide training regarding anti-discrimination laws to all its employees; post a notice informing its employees of the consent decree;
report to the EEOC any complaints of discrimination made by its employees; and take affirmative steps to recruit Asian nurses. Section 1981 of the Civil Rights Act of 1866 (42 U.S.C. §1981) and Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000(d)) make it unlawful to discriminate on the basis of race, religion, and ethnicity in the making and enforcement of contracts. The intent behind the policies is not widespread punishment, but promotion of a healthy change in corporate mindsets. Codes of practice are useful in providing organizations with guidance on appropriate standards of conduct, especially where the appropriate standards are not prescribed by law. 1.1. National Railroad Passenger Corporation, Petitioner v. Abner Morgan, Jr., 536 U.S. 101. Respondent former employees sued petitioner former employer under Title VII of the Civil Rights Act of 1964, [42 U.S.C.S. §2000e-5(e)(1) requires that a plaintiff filing a charge under the Title VII of the Civil Rights Act of 1964, file a charge with the EEOC either 180 or 300 days after the alleged unlawful employment practice occurred], some of his claims were dismissed as untimely, but the United States Court of Appeals for the Ninth Circuit had held that his claims were not time barred so long as they were sufficiently related to incidents that fell within the statutory period. Outcome: Although the statute’s 2-year limitation on back pay partially addresses these concerns, § 2000e-5 (g)(1), under the Court’s view, liability may still be assessed and other sorts of damages. 1.2. Patterson v. Intercoast Management of Hartford, Inc., 918 F.2d 12, 14 (2d Cir. 1990). Appellant employee brought an action against appellee, his former employer, for discriminatory termination of employment and the imposition of discriminatory working conditions under 42 U.S.C.S. § 1981. The trial court dismissed the complaint. Appellant challenged. The court affirmed the judgment, holding that appellant’s claims were related to the making or enforcement of contracts and therefore were not actionable under 42 U.S.C.S. § 1981. Neither the imposition of discriminatory working conditions nor a racially motivated discharge was actionable under the statute prohibiting discrimination only in the making and enforcement of contracts. Outcome: The court affirmed the judgment dismissing the action, holding that neither imposition of discriminatory working conditions nor a racially motivated discharge was actionable under the statute prohibiting discrimination only in the making and enforcing of contracts. 3. Gonzalez v. Home Ins. Co., 909 F.2d 716, 722 (2d Cir. 1990).
The Second Circuit determined that Patterson would not bar a termination claim under section 1981 if plaintiffs could, on good faith; allege that the defendant had entered the contract having the intent at the time of formation to terminate for racially discriminatory reasons. The Second Circuit also has held that where the contracts entered into between an employer and its black employees are identical in content to the white employees’ contracts. Insurance agents’ claim against insurance companies for race based discrimination should not have been dismissed on the pleadings where agency agreements contained overtly discriminatory terms. Outcome: The court reversed the trial court ruling, which dismissed a claim filed by appellant former insurance agents against appellee insurance companies for race based discrimination. The court held that because appellants alleged that certain appellee agencies’ contracts contained discriminatory terms, appellants’ claim should have survived as to those appellees. The court allowed appellants to amend their complaint and remanded the action. The NAACP Legal Department maintains an active docket of Civil Rights cases, frequently in conjunction with a team of cooperating lawyers around the nation who work daily in the courts alongside the Legal Department to address Civil Rights violations and forge the way in the fight to prevent the erosion of Civil Rights law in this country. While the NAACP does seek monetary relief in these cases, the primary focus of the NAACP’s Legal Program is to obtain injunctive relief in these cases to halt the perpetuation of the harm. The NAACP may become involved in civil rights litigation in one of two ways: •The NAACP may file a lawsuit against a person or entity as an organizational Plaintiff to redress a civil rights violation; or •The NAACP Legal Department may represent a individual or class of individual Plaintiffs in a civil rights lawsuit seeking redress for the Plaintiff or class of Plaintiffs who suffered a civil rights violation Cases:
1.1. Wright v. Stern, 553 F. Supp. 2d 337
In court papers filed in 2001, current and former employees of the New York City Parks Department alleged that African-American and Latino employees Parks workers had been denied equal employment opportunities. As a result of long-term, systemic discrimination throughout the Parks Department and
rising to its highest levels, minority employees experienced widespread discrimination in pay and promotion, racially segregated job assignments, and routine retaliation against class members who complained of inequality. Outcome: In September 2006, a District Court ruled in Wright v. Stern that plaintiffs presented sufficient evidence upon which a jury could find that the New York City Parks Department “engaged in widespread discrimination against African-American and Hispanic employees.” In December of 2006, the Parks Department agreed to settle the suit, resulting in a payment of more than $21 million in damages and fees. The settlement, in which the plaintiffs were represented by LDF along with co-counsel from the firms of Beldock Levine & Hoffman and attorney Lewis M. Steel, provided back pay and compensatory damages to current and former employees, attempting to remedy past discrimination in the promotion and pay of minority employees. The suit and settlement were officially approved by Judge Denny Chin of Manhattan’s U.S. District Court in May, 2008. (Wright v. Stern, May, 2001). 1.2. Griggs v. Duke Power, 28 L. Ed. 2d 158
In 1971, the Supreme Court issued a unanimous ruling in Griggs v. Duke Power that promulgated a powerful legal tool – now known as the “disparate impact” framework – that has proved essential in the fight to eradicate arbitrary and artificial barriers to equal employment opportunity for all individuals, regardless of their race. OUTCOME: The Court reversed the lower court’s judgment in favor of the employer. What is a possible solution? A better Workplace Harassment/Discrimination Investigations Process may need to be reviewed. This area of importance might not be thought of as being of much interest; however, investigation documentation and investigation report preparation–the important points to note, and the appropriate and clear use of wording–are extremely important to the scope and sufficiency of the investigation process, the employer’s evaluation and decision making, and risk management. Effectiveness in this area is a skill acquired by experience and education. The following is an example process outline for workplace harassment and discrimination investigations: 1. Begin the process promptly, don’t delay. Additionally, throughout the process evaluate and re-evaluate the disinterested people who are involved and who should be involved in the investigation process and decision making.
2. Compile the readily available background information to obtain a quick read of the situation. 3. Preliminarily evaluate the perceived seriousness of the immediate situation, and take prompt stabilizing or protective action if necessary.
4. Evaluate whether to investigate (facts in dispute, seriousness, parties involved, past actions taken in similar situations).
5. Evaluate manner of investigation (investigator from within or outside the organization; possibly through counsel from within or outside the organization). 6. Consider and select an investigator.
7. Plan the investigation.
8. Consider possible confidentiality and privacy issues.
9. Conduct the investigation. Interview the complainant. Interview the accused. 10. Document the investigation, and prepare the investigation report. 11. Submit the investigation report.
12. Evaluate the investigation and report.
13. Consider whether to obtain additional information, documents, testimony, and feedback; from complainant, accused, and possibly witnesses; if necessary. 14. Consider whether the investigation report should be updated, and update if necessary. 15. Consider possible additional evaluation of the investigation and report, if necessary. 16. Repeat steps 9-15 if necessary until the investigation is complete. 17. Evaluate the action options available, past actions taken, and past actions taken in similar situations. 18. Make and document the decision, and actions to be taken. 19. Review the decision with the complainant and the accused, and possibly with other employees or officers as prudence dictates. 20. Take action.
21. Conduct subsequent follow-up and evaluation.
22. Consider any need to modify the employer’s policies or procedures in the workplace. Interview other (third party) witnesses. Gather documents, and other information and evidence. The allegation, interview, information, document and other evidence obtaining process is fluid and constantly changing. While there are certain steps or approaches that might generally
be outlined or followed, the manner in which the investigator might approach the different parties and witnesses will vary, and, of course, from circumstance to circumstance it is not possible to predict the information and evidence that might be available, or the personalities and demeanors of the various people who might be relevant to the situation. In an interview situation, for example, you might (or might not, depending on the circumstances) generally proceed in the following manner: introduction; establish the appropriate environment and parameters; obtain information about the allegations, and the broad factual overview and evidence in a chronological order (or in select circumstances obtain immediate specific information, or proceed in a select, non-chronological order); obtain information about relevant specific, more detailed. The allegation, interview, information, document and other evidence obtaining process is fluid and constantly changing. (Tate, n.d.). This source will be useful in answering this question and also with the investigation process. Once the employee files the action, the investigator should begin the process promptly, don’t delay. Additionally, throughout the process evaluate and re-evaluate the people who are involved and who should be involved in the investigation process.