Articles Posted in Racial Discrimination

Yarelyn Mena and Edgar M. Rivera, Esq.

Women of color are leaving large firms at an alarming rate. According to the ABA Commission on Women in the Profession (the”Commission”), 85 percent of minority female attorneys in the United States leave large firms within seven yeas of hiring. This high attrition rate is largely due to the unique problems that women of color face at large law firms.

The Commission’s research concludes that women of color leave lucrative large firm jobs because they feel forced out due to discrimination, isolation and constant microaggressions. In 2003, it found that “in both law firms and corporate legal departments, women of color receive less compensation than men and white women; are denied equal access to significant assignments, mentoring and sponsorship opportunities; receive fewer promotions; and have the highest rate of attrition.” These problems force women of color to leave big law, resulting in the same problems for future generations, causing perpetual underrepresentation.

Lucie Rivière and Edgar M. Rivera, Esq.

On Wednesday, March 2, 2016, The Harman Firm, LLP published the first part of its three-part article titled Microaggressions. The second part, which follows below, discusses practical examples of microaggressions and their impact on those subjected to them.

Microaggressions are hidden messages that are sent: (i) verbally (“You speak good English” to Latino or Asian coworker, suggesting that Latino and Asian Americans, because of their ethnicity, are foreigners and not ‘real Americans,’ regardless of their birth place); (ii) nonverbally (clutching one’s purse more tightly when a black man passes on the sidewalk, conveying the belief that Black people are prone to crime and are “up to no good”) and; (iii) environmentally (using American Indian mascots during football games, suggesting that American Indians are savages or otherwise outsiders and demeaning their culture and traditions).

Lucie Rivière and Edgar M. Rivera, Esq.

On February 16, 2016, in Barella v. Village of Freeport, a bench of three Second Circuit judges—one white American, one Puerto Rican, and another black of Haitian decent—decided what it meant to be “Hispanic.” Judge José A. Cabranes, writing for the Court, held that under 42 U.S.C. § 1981 and Title VII, “race” included ethnicity. As such, the Second Circuit denied the Defendants’ motion for judgment as a matter of law (the case, however, was remanded on other grounds) and confirmed that discrimination claims based on Hispanic ancestry may proceed as race claims under these statutes.

In 2009, the Village of Freeport elected Andrew Hardwick (African-American) as its mayor. Once in office, Mayor Hardwick sought to replace the Freeport Police Department’s all-white “command staff” with officers who would help him “achieve his vision of community unity.” The racial makeup of Freeport is 42.5% Hispanic, 30.9% African American, and 23.6% white.

Yarelyn Mena

On December 22, 2015, the California Northern District Court denied Defendant Recology San Francisco’s (“Recology”) motion for summary judgment against its former employee, Daryle Washington, who alleged that Recology discriminated against him based on his race.

On December 10, 2013, Mr. Washington, a material handler for Recology, saw his white co-worker, Jon Peralta, take a noose from the sorting line and place it on the backpack of another black employee, Greg Foster, as if to put it around someone’s neck. Mr. Washington immediately complained of the incident to his superior, Joseph Damele. The following day, Mr. Peralta was suspended without pay pending an investigation, which concluded that his conduct warranted a five-day suspension. Mr. Damele informed all material handlers on Mr. Peralta’s shift of the suspension, emphasizing the company’s “zero tolerance for harassment.”

Edgar M. Rivera, Esq.

On September 2, 2015, the Second Circuit Court of Appeals decided Vega v. Hempstead Union Free School District, et al., an employment-discrimination case bringing claims under both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983. In an opinion written by Judge Denny Chin, the court held that claims of retaliation for complaining of discrimination are actionable under § 1983, vacating a prior Eastern District of New York ruling on the matter.

Section 1983 provides a federal cause of action against any person who, acting under color of state law, deprives another person of any constitutional or federal statutory rights, creating a vehicle by which a plaintiff may enforce existing federal rights denied by a state or local government. In the context of employment discrimination, § 1983 provides a private right of action for violations of the equal protection clause of the Fourteenth Amendment, which prohibits the “deprivation of any rights, privileges, or immunities” by a state or local government and its officials.

Yarelyn Mena

In April 2015, the Equal Employment Opportunity Commission (EEOC) investigated allegations that approximately 1,000 female and minority New York City administrative managers earned less than their white, male counterparts and received fewer promotions. “Pay gap” problems have long plagued New York City; although former mayor Michael R. Bloomberg put New York City’s current salary and promotion policies in place, the EEOC believes that “structural and historical problems” have prolonged the pay gap for women and minorities long before Bloomberg’s time. The EEOC investigation covered a total of six years, from 2009 to the present.

The EEOC’s investigation found that female and minority employees’ “rate of pay is much less than [those of] their white male counterparts in similarly situated jobs and titles.” As such, the EEOC recommended that the City pay a total of $246 million in back wages and damages, as well as begin to develop solutions to prevent future discrimination. Should the City refuse to negotiate, the EEOC made clear that it will file a lawsuit.

Yarelyn Mena

On February 28, 2014, Dawn Littlejohn sued her former employer, the New York City Administration for Children’s Services (ACS) alleging that ACS subjected her to a hostile work environment and terminated her because she was African-American, as well as retaliated against her because of her complaints regarding such discrimination. Ms. Littlejohn also alleged that ACS’s Director of Employee Relations, Brandon Stradford, sexually harassed her. The Southern District dismissed all claims against ACS; however, the Second Circuit disagreed, allowing Ms. Littlejohn to pursue her hostile environment and retaliation claims.

In April 2009, Ms. Littlejohn began working for ACS as the Director of its Equal Employment Opportunity Office (EEO), leading investigations regarding discrimination, training staff to spot and prevent discrimination, and advising EEO staff on office policies. In December 2009, Ms. Littlejohn began reporting to the Chief of Staff, Amy Baker, a white woman, who reported to ACS’s Commissioner, John Mattingly. Ms. Baker treated Ms. Littlejohn with hostility from the outset of their office relationship. Ms. Baker allegedly made huffing noises in front of manager’s when Ms. Littlejohn walked in the room, directed Ms. Littlejohn to unnecessarily re-create projects that were already completed, and frequently excluded her from the management meetings – which she used to attend, substituting her with a white, male subordinate. When Ms. Littlejohn discussed Ms. Baker’s conduct with her, Ms. Baker responded that Ms. Littlejohn was “just feeling left out” and that she did not “understand the culture” at ACS. Ms. Baker and other White managers continued to isolate Ms. Littlejohn and prevent her from attending meetings until a merger with the City’s Department of Juvenile Justice’s brought on a new Assistant Commissioner, who demanded that Ms. Littlejohn attend the meetings.

Yarelyn Mena and Edgar M. Rivera, Esq.

On July 31, 2015, the United States Court of Appeals for the Second Circuit dismissed race and national origin discrimination claims against the New York City Department of Sanitation (DSNY). The plaintiffs used statistics alone to attempt to show that the DSNY discriminated against employees of color for management positions.

Each plaintiff believed that he or she was passed over for open positions, for which they were qualified, for lesser qualified White employees. For example, Andrenia Burgis, a Black employee, who was employed with DSNY since 1998, was promoted to Superintendent, and then to General Superintendent Level 1 in 2007. Two years later, Ms. Burgis had met all the prerequisites to continue advancing her position, but she was not promoted. In 2012, Ms. Burgis again applied for promotion to General Superintendent Level 2 but by that time, DSNY already had promoted less qualified White employees to the upper level superintendent positions instead of her.

It is common knowledge that the sustained political activism of Martin Luther King, Jr. over the decade leading up to the passage of the Civil Rights Act of 1964 (CRA) were crucial to its passage . Perhaps somewhat less well-known is that the Act created the Equal Employment Opportunity Commission (EEOC), or that about 12,000 to 20,000 federal civil cases are filed each year alleging employment discrimination in violation of Title VII of the CRA.

These facts alone reveal why King left an indelible mark on our nation’s labor laws. With the passage of the CRA, it became illegal for employers to discriminate against employees on the basis of race, color, religion, sex, or (later) age.

Most people also do not know that Dr. King was extremely active in defense of a different law, the National Labor Relations Act (NLRA), which established the right of all workers to form unions and bargain collectively with their employers regarding their working conditions and wages. King spent much of his time joining, speaking to, and leading labor actions; in fact, this is what he was doing in Memphis when he was killed.

In 2011 Washington University professor Michael Honey published a collection of Martin Luther King, Jr.’s speeches to labor unions and workers’ rights coalitions, entitled All Labor Has Dignity. King’s words in these speeches leave no room for doubt about his commitment to organized labor. His message to union organizers and activists was visionary and poetic, but not naive: “fighters for justice,” he would tell them, “will be met with fierce resistance from the economic and political power structure and they must remain firm. They will be called reds, troublemakers, and accused of interfering with property rights…” He knew these revolutionary changes were risky, and that they could only be accomplished through collective action, because the power structure would use all its resources against both of them.

King believed that the struggle for civil rights and racial equality was deeply intertwined with the simultaneous struggle for labor rights. “Our needs are identical with labor’s needs,” he said, “…decent wages, fair working conditions, livable housing, old-age security, health and welfare measures, conditions in which families can grow, have education for their children, and respect in the community.” In fact, King sometimes went further and suggested that civil rights victories would be hollow if not accompanied by economic actions designed to make good-paying jobs available to people. He understood that unionization was the most direct and effective way to generate those kinds of jobs. He also understood that the labor and anti-racism movements each had strong philosophical and pragmatic reasons to embrace each other’s causes as part of their own.

The union movement has been beaten down in recent decades, needless to say. But a society in which 1% of the people own more than 40% of the nation’s wealth, and most people see equality of opportunity as a utopian dream, seems destined for instability. And organized labor has indeed shown new signs of life recently. In fact it is quite easy to imagine Dr. King giving a speech today to the Service Employees International Union, to a packed house of fast food workers. Those in attendance would probably be mostly minorities and women–a fact that wouldn’t be lost on him–but perhaps he could have convinced another generation of us that it still makes sense to believe in, and fight for, the larger cause of economic justice. It is easy to imagine him savagely criticizing the forces that promote inequality and create a class of people who work hard but cannot afford necessities, arguing for progressive social programs.