Articles Posted in Racial Discrimination

Leah Kessler

On October 19, 2017, in John L. McKinney Jr. v. G4S Government Solutions, Inc., the Fourth Circuit affirmed the ruling of the district court, dismissing John McKinney’s hostile work environment, retaliation, and intentional infliction of emotional distress (IIED) claims against his former employer, G4S Government Solutions, Inc. (“G4S”). The Fourth Circuit concluded that Mr. McKinney failed to follow G4S’s procedure for reporting discrimination and his emotional distress lacked the necessary severity to sustain a claim.

In September 2005, G4S hired McKinney, who is Black, as a security officer at the Radford Army Ammunition Plant (RFAAP).  On May 23, 2013, McKinney observed four of G4S’s white superior officers laughing in a common area near his office. One of them, Shawn Lewis—a project manager and G4S’s highest ranking supervisor at RFAAP—asked McKinney “if he knew that there was a noose hanging on a nail inside a small closed cabinet outside the security captain’s office.” After showing McKinney the noose, Lewis directed McKinney to get rid of it, over McKinney’s objection.  As McKinney was walking away with the noose, another employee—who lived in a predominantly Black neighborhood—told McKinney, “I know what to do with [the noose]. I can use that around my house.” That same day, McKinney saw Lewis standing on a ladder in the supply room, holding a white sheet over another supervisor’s head to resemble a Ku Klux Klan hood.

Edgar M. Rivera, Esq.

On May 4, 2017, Mayor Bill de Blasio signed a law prohibiting employers from inquiring about a prospective employee’s salary history, which goes into effect on October 21, 2017. The Office of the Mayor hopes that preventing employers from asking questions during the hiring process about an applicant’s previous compensation—which is often used as a benchmark for a new employee’s starting pay—will end the “perpetuating cycle of suppressed wages” for minorities.

The new law prohibits an employer from asking about or using a job applicant’s compensation history to determine their salary during the hiring process, including the negotiation of a contract. An applicant’s salary history includes their current or prior wage, salary, benefits, or other compensation.  Employers are still allowed to discuss expectations about salary, benefits, and other compensation with a job applicant.  Further, if an applicant, voluntarily and without prompting, discloses their salary history to an employer, the employer may consider that information in determining the applicant’s salary, benefits and other compensation.

Lev Craig

On September 6, 2017, a coalition of 16 states filed suit against the federal government in response to the Trump administration’s pronouncement that it would revoke the Deferred Action for Childhood Arrivals (DACA) program established by President Obama. The lawsuit, led by New York State Attorney General Eric Schneiderman and filed in the U.S. District Court for the Eastern District of New York, alleges that rescinding DACA unlawfully discriminates against individuals of Mexican national origin, violates the due process rights of DACA grantees, and negatively impacts states’ residents and economies.

DACA was established by the Obama administration in June 2012 via an executive branch memorandum issued by Janet Napolitano, the then–Secretary of Homeland Security. The policy allowed undocumented immigrants who had arrived in the U.S. before the age of 16 and met certain eligibility conditions to apply to U.S. Citizenship and Immigration Services (USCIS) for work permits and protection from deportation for two years. Immigrants requesting DACA were required to have lived continuously in the U.S. since 2010 and to be currently in school, have a high school diploma or GED, or be an honorably discharged U.S. military veteran. In addition, individuals who had been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, or who USCIS determined would “otherwise pose a threat to national security or public safety,” could not apply for DACA.

Lev Craig

On June 15, 2017, U.S. District Judge John G. Koeltl of the Southern District of New York approved the parties’ consent decree in United States v. City of New York, a race discrimination case brought against the City of New York and the New York City Department of Transportation (NYCDOT) under Title VII of the Civil Rights Act of 1964 (Title VII). The lawsuit, filed by the U.S. Department of Justice (DOJ) in January 2017, alleged that NYCDOT management violated Title VII by systematically discriminating against racial minorities over a nearly ten-year period.

According to the complaint, the NYCDOT “engaged in a pattern or practice of racial discrimination and retaliation based on the failure to promote minority employees” within the Fleet Services unit, an NYCDOT division responsible for maintaining NYCDOT vehicles such as trucks, passenger cars, and heavy machinery. The complaint described a “culture of fear and intimidation” created by nearly a decade of discrimination and retaliation against minority employees in the Fleet Services Unit, perpetrated primarily by two NYCDOT executive directors.

By Edgar M. Rivera, Esq.

On May 15, 2017, the District Court for the Northern District of Illinois denied the Township High School District 214’s motion to dismiss in Valdivia v. Township High School District 214, where Noemi Valdivia, a Hispanic high school secretary, claimed that co-workers’ derogatory comments about Hispanic students and their families forced her to resign.  She brings a hostile work environment claim based on race under Title VII of the Civil Rights Act of 1964 (Title VII) and an interference claim for defendant’s failure to inform her that she was eligible for 12 weeks of leave under the Family and Medical Leave Act (FMLA).

Ms. Valdivia began working at District 214’s Elk Grove High School in 2010. Although she claims that her coworkers had always made derogatory remarks about Hispanic students and their families, in September 2014, these remarks became more frequent. For example, one of her peers allegedly said that Hispanic people “came to America” and “want everything for free even though they have new cell phones and their nails done.” Another told Ms. Valdivia not to speak Spanish at work because they were in “America.” Ms. Valdivia claims that she complained to both the school principal and the assistant principal, but both told her there was nothing they could do since “the secretaries’ union was too strong.”

Lev Craig

On May 9, 2017, the U.S. Court of Appeals for the Second Circuit denied summary judgment in Ahmed v. Astoria Bank, where plaintiff Sherin Ahmed brought religion, race, and national origin discrimination claims against her former employer. The Second Circuit held that the district court had erred in concluding that Ahmed had not presented evidence of discrimination and harassment sufficient to meet the threshold for a hostile work environment claim under Title VII of the Civil Rights Act of 1964 (“Title VII”). As such, the court vacated the lower court’s granting of summary judgment, allowing the case to proceed to trial.

Ahmed, who is originally from Egypt and immigrated to the U.S. in 2001, is a practicing Muslim woman and wears a hijab as part of her religious observance. In 2013, Ahmed interviewed for a quality control analyst position at Astoria Bank, a Long Island City­-based bank serving the New York metropolitan area, and was hired, conditional upon a 90-day probationary period. But, she alleges, Astoria Bank discriminated against her based on her race, religion, and national origin beginning as early as the day of her interview, when Anthony Figeroux, a Vice President at the bank, told her that she and two other Middle Eastern employees were “suspicious” and that he was glad he was “in the other side of the building in case you guys do anything.”

Lev Craig

On September 21, 2016, the Eleventh Circuit Court of Appeals affirmed the Southern District of Alabama’s decision in Equal Employment Opportunity Commission v. Catastrophe Management Solutions, in which the district court held that an employer’s policy prohibiting employees from having dreadlocks did not constitute race discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII).

In May 2010, Chastity Jones, who is Black and wears her hair in dreadlocks, completed an online employment application for a customer service representative position at Catastrophe Management Solutions (CMS), an insurance claims processing company based in Mobile, Alabama, and was selected for an in-person interview. Ms. Jones performed well in her interview, and CMS hired her for the customer service representative position on the spot.

Harrison Paige

In Edwards v. Oklahoma Bureau of Narcotics and Dangerous Drugs Control, Chris Edwards, a Black man, brought claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), alleging that the Oklahoma Bureau of Narcotics and Dangerous Drugs Control (“OBN”) refused to promote him to the Agent in Charge (“AIC”) position because of his race. On January 30, 2017, the U.S. District Court for the Western District of Oklahoma denied OBN’s motion for summary judgment.

In its motion, OBN argued that Mr. Edwards did not receive the promotion because he (1) was not qualified for the position, and (2) performed poorly during the interview. In response, Plaintiff argued that, with respect to the first point, OBN did not consider qualification in its decision. Mr. Edwards alleged that the OBN division director responsible for hiring for the AIC position, Darrell Weaver, preselects candidates for promotions and holds sham interviews to hide the preselection, thereby making a candidate’s qualifications for the position obsolete. In support, Mr. Edwards alleged that, on previous occasions, Mr. Weaver had sent employees through “chief school” before those employees had been promoted to the “chief” position; Mr. Weaver then held interviews with those two employees for the chief role and, unsurprisingly, chose them for the job.

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).