Articles Posted in Racial Discrimination

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By Edgar M. Rivera, Esq.

On May 7, 2019, three anonymous Somali Muslim women, Ms. A, Ms. B, and Ms. C, filed charges with the Equal Employment Opportunity Commission (EEOC) in Minneapolis, Minnesota against Amazon.com, Inc. (“Amazon”), alleging violations of Title VII of the Civil Rights Act of 1961.  These women claim Amazon’s Shakopee, Minnesota fulfillment center failed to accommodate Muslim employees’ religious needs, failed to promote Somali workers, and retaliated against workers who protested discrimination.  Minnesota is home to some 30,000 immigrants from Somalia who started settling in the area in large numbers in the 1990s.  Somali immigrants make up a sizable portion of the 3,000 workers at the Amazon fulfillment center in Shakopee, Minnesota.

The women allege that Amazon denied them adequate space and time to practice their religion.  They claim that employees feared taking time away to pray, since that lost time would reduce a worker’s “rate,” or how many items a worker packs per hour.   The warehouse’s current packing rate is 240 boxes an hour, but it has gone as high as 400.  Employees who regularly fall short of the rate—simply because they attempted to observe their religious obligations to pray—faced repercussions such as write-ups.  Several employees stopped taking breaks to perform ablutions before prayer, broke their Ramadan fast, and stopped going to the bathroom.

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By Leah Kessler

On March 13, 2019, 19 current and former United Parcel Service, Inc. (“UPS”) employees brought a suit against UPS and five local managers and supervisors alleging race discrimination.  Covered by CNN, Slate, The Washington Post, The Hill, and other major media outlets due to both the severity of the allegations and UPS’s negligence in addressing its employees complaints of racial discrimination, this case has received national attention.

Dewayne Spears, et al. v. United Parcel Service, Inc., et al., Plaintiffs present a series of horrific racist acts going back to 2013—discriminatory behavior that UPS allegedly allowed to go on unchecked for decades.  In 2013, according to the suit, a Black UPS employee “received a copy of an electronic image depicting a gallows and hangman’s noose with a Black man’s effigy hanging from the noose, an image of a gorilla, and a target on the effigy.”  In 2016, one white employee directed the following texts to a Black co-worker as part of a group text: “If you feel down and out, the noose is loose,” “Can we buy another noose with the winnings” (in reference to possible lottery winnings), and “Like Clint Eastwood said, ‘Hang ‘em High.”  After the Black employee on the thread who had reported the comments filed a grievance, UPS denied the formal complaint had been made and, at no point, were any of the culpable workers punished for making the racially threatening comments.

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Edgar M. Rivera, Esq.

On March 26, 2018, the U.S. District Court for the Northern District of Illinois granted summary judgment in favor of the defendant in Westbrook v. Illinois Department of Human Services, dismissing the hostile work environment claims brought by Velma Westbrook against her former employer, the Illinois Department of Human Services (IDHS). Ms. Westbrook, an African-American security therapy aide, alleged that a patient repeatedly made racially derogatory comments and once tried to attack her. The court held that, due to the nature of Ms. Westbrook’s job, the patient’s offensive comments and behavior were not sufficiently severe or pervasive to alter the conditions of Ms. Westbrook’s employment, meaning that Ms. Westbrook could not sustain a hostile work environment claim under Title VII of the Civil Rights Act of 1964 (“Title VII”).

In 2001, Ms. Westbrook began working as a security therapy aide for IDHS’s forensic treatment programs, which house and provide treatment for individuals who have been found not guilty by reason of insanity in criminal court. As a security therapy aide, Ms. Westbrook’s job duties included documenting residents’ inappropriate behavior, de-escalating resident behavior in potentially dangerous situations, and preventing residents from harming themselves or others. At the beginning of her employment at IDHS, Ms. Westbrook received training on how to deal with disruptive residents, restrain combative residents, and defend herself against residents who became aggressive, and she testified that she knew when she took the job that she would be dealing with mentally ill individuals. Over the course of her nearly 10-year employment at IDHS, Ms. Westbrook observed patients assault others on a regular basis, and she regularly worked with patients who said hurtful or offensive things to staff members.

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Leah Kessler

On March 27, 2018, in Del Toro Lopez v. Uber Technologies, Inc., Uber agreed to pay a $10 million settlement and make systemic changes to the way it evaluates employees to settle a class action brought by three Latina engineers, who alleged that they were paid less than their white and Asian male colleagues due to Uber’s unfair evaluative methods. The settlement will compensate about 285 women and 135 men of color for financial and emotional harm stemming from the alleged discriminatory practices.

In October 2017, Ingrid Avendaño, Roxana del Toro Lopez, and Ana Medina—all of whom are Latina women who were employed as software engineers at Uber—filed suit in California on behalf of themselves and other aggrieved employees, claiming that Uber engaged in unfair business practices and violated the California Equal Pay Act and Private Attorneys General Act. The complaint alleged that Uber uses a “stack ranking” system for evaluating employees, meaning that Uber evaluates each employee from “worst to best.” The result, as the suit claims, is that “female employees and employees of color are systematically undervalued….because [they] receive, on average, lower rankings despite equal or better performance.” These stack rankings are used, in part, to determine promotions.

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Leah Kessler

On the third Monday of January each year, we observe Martin Luther King Jr. Day, an occasion to remember, reflect on, and do our best to promote the vision for which Martin Luther King Jr. fought and died. Yet, as a nation, our remembrance of Dr. King’s work often ignores (or, perhaps, those with the power to write history, decided to elide) some of the core goals and values of his activism—among them, his commitment to anti-poverty work, labor organizing, and workers’ rights, issues he viewed as inextricable from his civil rights activism.

While U.S. states and employers now observe Martin Luther King Jr. Day, this was not accomplished easily or without resistance. While President Ronald Reagan officially recognized Martin Luther King Jr. Day as a U.S. holiday in 1983, he initially opposed the holiday (citing “cost concerns”), despite a petition to Congress with more than six million signatures in favor of the holiday. Though President Reagan ultimately passed Martin Luther King Jr. Day into law, it was not actually observed until three years later, and many states continue to resist doing so; in fact, the holiday was not officially observed in all 50 states until 2000. Even today, several states—including Alabama, Mississippi, and Virginia—still choose to “combine” Martin Luther King Jr. Day with observances of holidays recognizing Confederate generals Robert E. Lee and Stonewall Jackson.

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Edgar M. Rivera, Esq.

On November 21, 2017, in Martinez v. Davis Polk & Wardwell LLP, the Second Circuit affirmed the district court’s dismissal of a race discrimination case at summary judgment. Plaintiff Eunice Martinez, a web editor at the law firm Davis Polk & Wardwell LLP (“Davis Polk”), claimed that Davis Polk—despite Martinez’s repeated requests to be promoted to a management-level position—awarded her lower salary raises and failed to promote her into a managerial position because she is Hispanic. The district court concluded that Martinez failed to establish a prima facie case for either claim. Second Circuit Judges Rosemary S. Pooler, Debra Ann Livingston, and Denny Chin affirmed the decision.

To prove pay discrimination, Martinez had to satisfy the “demanding” standard of the equal work inquiry, which requires evidence that the jobs compared are “substantially equal.” Showing that two positions are “substantially equal” is easier said than done, as even small differences in duties or responsibilities can suffice to show that two positions are not “substantially equal.” Here, Martinez conceded that she “holds a unique position and there is no point of comparison” for her particular job and testified during her deposition that she was not qualified to do the jobs of six of her proposed seven comparators. As a result, Martinez could not show that her comparators were “substantially equal” and therefore could not show that they did “equal work.”

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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.

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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.

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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.

Today, there are around 800,000 DACA enrollees—nearly 42,000 of whom live in the state of New York, where they pay approximately $140 million in annual state and local taxes. The Center for American Progress found that 97% of DACA participants are employed or enrolled in school, and studies have shown that instituting DACA has led to improved wages and a boost in workforce participation, reduced the number of undocumented households living below the poverty line, and improved the mental health of undocumented immigrants and their children.

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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.

The directors allegedly referred to African-American employees with racist epithets like “n*gger” and “monkey”; gave preferential treatment to white employees in promotions, hiring, and project assignments, including promoting less experienced white individuals over more qualified minority candidates and changing hiring procedures to disadvantage racial minorities; and retaliated against employees who complained of discrimination by cutting their hours and even physically threatening them.

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