If you don’t think racism permeates American society, just ask an employment attorney.
Source: EHS Today
By David Sparkman
It may be difficult to believe for people who haven’t experienced it, but active racism permeates all too many American workplaces. We’re not referring to “microaggressions” or subtle, unthinking bias reflected in hiring and promotion—we’re talking about routine abuse involving racial epithets and displays of symbols that threaten violence.
In every case that has reached America’s court system, another thing is usually made depressingly clear: The employer was informed of this unacceptable behavior and either chose to do nothing to end it, and in some cases actually led and participated in the abuse.
If you doubt this may be true, consider the experience over the years of Richard B. Cohen, an attorney with the law firm of FisherBroyles, who represents employers. He informed us recently: “I’ve written numerous articles and blog posts over the last 15 years about racial animus still rearing its ugly head in the workplace—and involved in virtually every such case where the victim is an African-American there is the presence of the N-word—or worse, a noose. Or both!”
And if you also are tempted to believe that this behavior is waning and that casual racism is little more than a fading relic of the past, you need to understand that this is a problem that persists and continues to manifest itself in almost every part of the country and in widely varying workplaces.
On June 2, the Equal Employment Opportunity Commission (EEOC) filed suit in federal court charging the CCC Group Inc. construction company for numerous instances of this kind of behavior that took place at a worksite in the state of New York. In its announcement, EEOC pointed out that “one white supervisor attempted to snare an employee with a noose” while another one “told an African-American employee that for Halloween, ‘You don’t even have to dress up. I will dress in white and put a noose around your neck and we’ll walk down the street together.’”
Jeffrey Burstein, regional attorney for the EEOC’s New York District Office, noted that this was just one of the most recent of numerous examples of abhorrent racial discrimination and harassment that African-American employees have experienced over the years. “The use of a noose is especially vicious,” he said. “Such misconduct violates federal law and common decency.”
This terrible behavior directed at African-American employees hasn’t slowed down, according to Cohen. “The workplace is a microcosm of society; in other words, what happens in the workplace is simply a reflection of the dynamics of society’s tensions and conflicts, as can painfully be seen these days on the streets of hundreds of America’s cities and towns.”
Johnny C. Taylor, Jr., president and CEO of the Society for Human Resource Management (SHRM), points out, “For many people, the workplace is often the first, and sometimes only, place they encounter people unlike themselves. That experience—what happens in the workplace—shapes our thinking about others, and we take that out into the community and home with us.”
Taylor adds, “Rooting out and exposing bias in our workplaces, especially unconscious bias, can have a transformative effect on the larger world we move through.”
Incidents Pile Up
Consider these incidents of workplace racism that have been reported over the last three years:
● A noose was found in an Ohio foundry, and the EEOC says one of the company’s top officials routinely subjected employees to derogatory racial comments.
● A life insurance company agreed to pay $20.5 million to employees who alleged race, national origin and sex discrimination, and retaliation. African-Americans were referred to as “lazy,” had stress balls thrown at them, and were subjected to racially demeaning cartoons, while a high-level manager called African-American female employees the company’s “resident street walkers.”
● At an Illinois fence installation company, a black employee was repeatedly subjected to racial slurs and comments and other offensive conduct, including the display of a noose. Although the company was aware that racial harassment was occurring, it took no action to stop it., EEOC reported.
● A Georgia grocery store owner allegedly subjected three African-American employees to daily use of the N-word and called them “monkey” and other racial epithets. EEOC said the owner also prominently displayed racially offensive posters in a non-public work area.
● At a Minnesota mattress manufacturer, it was found by EEOC that employees were subjected to racial harassment in the form of displays of KKK hoods, nooses and verbal expressions of racial slurs and jokes.
● A Minnesota construction company settled with the EEOC after being accused of subjecting two African-American employees to racial harassment by a white supervisor, which included making racially derogatory comments and use of the N-word, and making a noose out of electrical wires and threatening to hang them.
● At a Brooklyn-based construction company, black laborers were routinely referred to by the N-word, “gorilla” and similar epithets. An employee who complained was fired—another common experience in these cases.
Not surprisingly, most of these incidents are also accompanied by complaints alleging other kinds of discrimination, particularly when it came to work assignments, promotions and disciplinary actions.
The EEOC and employment lawyers like FisherBroyles’ Cohen are not the only ones losing patience with this sort of behavior by employers and their continuing unwillingness to stamp it out. Federal courts in the past had upheld the idea that the single use of the N-word in a workplace could not constitute legal discrimination unless it was part of a pattern of other discriminatory behavior, but in recent years some courts have begun to hold that it can be.
“The latest events show that racism—overt or implicit—is unfortunately embedded in the very fabric of our society, and therefore, in our workplaces,” Cohen doesn’t hesitate to inform us. “Until racism is eliminated from our society, it will, of course, pop up in our workplaces.”
He makes it clear that employers would be well-advised to take all steps necessary to stamp out acts or expressions of racism by going beyond simply making it clear that this is behavior that will not be tolerated. “I know that many companies have employee handbooks with anti-harassment and discrimination provisions—which all employers should have—but employers must do more.”
Human resources experts say that employers need to insist on including conducting professional training sessions for all employees, much the same as employers are expected to do when it comes to sexual harassment training, which is now required by law in several states.
“Make sure that senior managers are acutely aware of your anti-harassment policies and procedures and provide good role models for the workplace—top-down behavior is perhaps the most important preventive measure which you can take,” Cohen stresses. “Employees look to the executives as role models to see what is or is not acceptable behavior.”
Originally included as part of the Civil Rights Act of 1866, Section 1981(a) states in relevant part:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other
Race and ethnicity based discrimination claims, as well as, retaliation claims, brought under 42 USC Section 1981 have advantages over similar claims brought under Title VII.
Under Section 1981:
Plaintiffs are not required to submit their claims for review by the Equal Employment Opportunity Commission (EEOC).
Employer are exposed to unlimited damages.
The statute of limitations can be as long as four years.
Both employers and individual employees can be named as defendants.
Employers with fewer than fifteen employees can be held liable for damages.
Under Title VII:
Plaintiffs must submit their claims for review by the Equal Employment Opportunity Commission (EEOC) and EEOC must issue a “Right to Sue” letter.
Employers are exposed to a maximum of $300,000 in compensatory and/or punitive damages.
The statute of limitation for filing a complaint with EEOC is generally 180 days.
Only employers can be named as defendants.
Employers with fewer than fifteen employees cannot be held liable for damages.
Racial discrimination refers to the practice of treating individuals differently because of their race or color. Federal law prohibits race discrimination in the workplace and incidents of race discrimination can take many forms, in the workplace particularly, race discrimination can be hard to identify. For more information about race discrimination, read below.
Racial discrimination occurs when an individual is treated differently base on their actual or perceived race. Race discrimination also includes discrimination based upon skin color. Though race and color are related concepts, the two are not synonymous.
Color generally refers to discrimination based upon one’s pigmentation, complexion, or skin shade (lightness, darkness) or tone. Color discrimination can occur between persons of different races or ethnicities, or between persons of the same race or ethnicity.
Race discrimination can also occur if an individual is treated differently based on their association with members of another race. Such discrimination can occur directly, such as when an employer intentionally targets a member of a racial group or indirectly when a seemingly neutral job policy tends to exclude minorities for a reason that is not job-related. Additionally, regulation that prevents race discrimination also prohibits discrimination based upon stereotypes, assumptions about abilities, traits or the performance of individuals of certain racial groups.
If you have experienced any of the following situations, you may be a victim of race discrimination:
Hiring/Firing/Promotions: You apply for a job for which you have experience and excellent qualifications. You are not hired because some of the company’s long-time clients are not comfortable working with African-Americans. You are told that you are being laid off due to company cutbacks and reorganization, while white employees with the same job and with less seniority than you keep their jobs. You have worked for your company for several years, receiving excellent reviews and an employee-of-the-year award, yet each of the five times you have applied for promotions, the positions you applied for are instead filled by less qualified people of a different race.
Pay: You worked your way up from the position of executive assistant to project manager. A white project manager with similar training and work experience was recently hired, and you find out that he will be paid more than you. You are a top salesperson for your company but are moved to a less desirable territory because it is a minority neighborhood, while a white employee with much lower sales is given your territory and client base, enabling him to make much more in commissions than you will make for several years.
Job Classification: You work at a company that has an eight-tier job classification system; your responsibilities have increased over time, but your job classification and pay have remained stagnant; white colleagues have their job classification and pay adjusted to reflect their increased responsibilities.
Harassment: One of your coworkers thinks it is “funny” to use the “n-word” in conversation and to tell jokes insulting African Americans, Latinos, Asians, and other minorities. These comments make you very uncomfortable, and you’ve asked him to stop, but he tells you that you need to get a sense of humor. The boss tells you to ignore him but does not talk to or discipline your coworker for his discriminatory behavior.
The examples listed above are not an exhaustive list but do illustrate the general elements of race discrimination.
Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination in employment based on race. Title VII makes it illegal for an employer to discriminate against individuals because of their race in hiring, firing, discipline, distribution of benefits, promotion, compensation, job training, or any other term, condition, or privilege of employment. The laws of most states also prohibit discrimination based on race. For more information, see question 22 below.
Title VII covers all private employers, state and local governments, and educational institutions that employ 15 or more individuals. Title VII also includes private and public employment agencies, labor organizations, and joint labor-management committees controlling apprenticeship and training.
Anti-discrimination protections apply to job applicants as well as current workers. If you are a current employee and are fired, not promoted, or paid at a lower rate, you are protected under the law. If you are not hired because of your race, you are also protected.
Many states also make it illegal to discriminate based on race. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.
4. How does Title VII protect against discrimination?
The law forbids discrimination when it comes to any aspect of employment. This includes hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
There are two broad types of racial discrimination:
Disparate treatment: when individuals are treated differently on purpose because of their race. Examples: offering ethnic minorities lower starting salaries, or posing different interview questions to white applicants and ethnic minorities.
Disparate impact: this is a negative impact that race discrimination might have. It happens when seemingly neutral workplace practices have an unnecessary and negative effect on members of a protected class. Examples: unnecessary requirements for one’s appearance, like requiring men to have short hair, which might eliminate qualified Native American applicants, or requiring hair to be straightened, which would unduly burden many African American women who have naturally curly hair.
There is a key legal distinction between disparate treatment and disparate impact race discrimination. A case involving disparate treatment requires a finding of intentional discrimination, and the individual must prove that the employer had a discriminatory intent or motive. However, disparate impact cases do not require a showing of intent.
Intentional discrimination occurs when an employment decision is affected by the person’s race. It includes not only racial animosity, but also conscious or unconscious stereotypes about the abilities, traits, or performance of individuals of certain racial groups.
Example: An upscale retail establishment with a sophisticated clientele rejects an African American male applicant. The hiring manager stereotypically believes that African American males do not convey a clean-cut image and that they lack the soft skills needed to service customers well. A finding of discrimination would be warranted.
6. Can I be discriminated against because my spouse and friends are of different races?
No, the law prohibits discrimination based on:
Your marriage to or association with someone of a different race;
Membership in or association with ethnic-based organizations or groups;
Attendance or participation in schools, places of worship, or other cultural practices generally associated with certain minority groups, such as cultural dress or manner of speech, as long as the cultural practice or characteristic does not materially interfere with the ability to perform job duties.
7. Can I be discriminated against by someone of the same race as me?
Yes, discrimination based on race by someone of the same race is still illegal. There is no requirement under the law that the victim and the perpetrator be of different races.
Example: A court in Texas found race discrimination occurred in a case alleging that a shuttle service discriminated against African American drivers in favor of native African drivers. The evidence revealed that the transportation shuttle service denied the African American drivers the more profitable routes, sent them to destinations where no passengers awaited pickup, and misappropriated their tips by giving them to the native African drivers.
8. Are racial jokes or slurs against the law?
It depends. Racial jokes or slurs may be considered a form of harassment, which courts have determined is a form of discrimination under the law. However, federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. The conduct must be sufficiently frequent or severe to create an intimidating, hostile, or offensive working environment, or result in a “tangible employment action,” such as hiring, firing, promotion, or demotion. For more information, see our page on racial harassment.
9. What is reverse discrimination and is it covered under Title VII?
Reverse discrimination is a term created to mean discrimination against members of a historical majority, or “advantaged,” group. However, it is not a legal term identified by U.S. courts. Because anti-discrimination laws were enacted to prevent discrimination against groups that were historically disadvantaged and denied opportunities in the workplace, there may be a perception that the same laws do not protect members of majority groups. However, anti-discrimination laws prohibit all forms of discrimination based on protected characteristics, regardless of whether a person belongs to a majority group.
Much of the opposition to affirmative action is based on what are called “reverse discrimination” and “unwarranted preferences.” However, very few employment discrimination cases pending before the Equal Employment Opportunities Commission are reverse discrimination cases. Under the law and interpretations by courts, anyone benefiting from affirmative action must have the relevant and valid job or educational qualifications.
If your employer has an affirmative action plan, it may help eliminate some of the barriers to advancement that racial minorities have faced historically. You may wish to consult with your company’s human resource department or your personnel handbook to learn more about how the plan may benefit you and other employees who are racial minorities.
10. Can I be assigned to a particular kind of job, or to a certain neighborhood or territory because of my race?
It is against the law to limit, segregate, or classify employees or applicants for employment based on race in any way that could deprive them of employment opportunities or otherwise adversely affect their employment status.
It is a violation of Title VII if employees of a certain race or races are segregated by being physically isolated from other employees or customer contact. Title VII also prohibits assigning primarily minorities to predominantly minority establishments or geographic areas. It is illegal to exclude minorities from certain positions or to group or categorize employees or jobs so that minority workers generally hold certain jobs, or because of a belief that they should do so.
Consequently, an assignment or placement selected because of your race that segregates you or negatively affects your pay, status in the company, or ability to advance would be against the law. Yet, an assignment made for legitimate, nondiscriminatory reasons that do not negatively affect or segregate you would not be illegal.
11. Can a job application ask me to identify my race?
Requesting Requiring pre-employment information that discloses or tends to disclose an applicant’s race suggests that race will be unlawfully used as a basis for hiring. Therefore, if members of minority groups are excluded from employment, asking for such information in the job application process is likely to be evidence of discrimination.
However, employers may have a legitimate need for information about their employees’ or applicants’ race for affirmative action purposes and/or to track applicant flow. One way to obtain racial information and guard against discriminatory selection is for employers to use “tear-off sheets” for the identification of an applicant’s race. After the applicant completes the application and the tear-off portion, the employer separates the tear-off sheet from the application and does not use it in the selection process.
Additionally, if a company has 100 employees or more, or is owned by/affiliated with a company with 100(+) employees, they are required by law to submit an Equal Employment Opportunity report (EEO-1) each year to the Equal Employment Opportunity Commission (EEOC). This report includes a lot of information (including employee statistics) that is reported in aggregate. That means they aren’t reporting anything about individuals, just about big picture numbers for the company overall (aggregate statistics). The company may decide to gather these stats during the hiring process just to make this reporting task easier. But unless you are hired, they won’t be sending your information anywhere.
The hiring manager should not see this info while going over applications and resumes.
12. Can employers use testing or implement a policy that affects one race more than another?
Not if it is not job-related. Title VII makes illegal both intentional discrimination as well as job policies that appeal neutral but in fact are not job-related and disproportionately harm workers of certain races.
Example: A policy that requires a high school degree for all employees, which may disproportionately exclude African-Americans and Latinos. If a high school degree is not necessary to perform every position, such as those involving physical labor, then this policy might be illegal.
A policy that excludes individuals with sickle cell anemia tends to discriminate against African-American individuals and would be illegal unless proven to have a legitimate business purpose.
However, Yes, professionally developed tests may be used to make employment decisions if they do not discriminate on the basis of race. Employment tests that disproportionately exclude applicants/employees of a certain race must be validated.
13. Is race ever a qualification for a certain job?
Yes, in very limited circumstances. Title VII makes an exception when age is an essential part of a particular job – also known by the legal term “bona fide occupational qualification” or BFOQ.
Example: If a company hires an actor to play the role of an African-American father, being African-American is a necessary part of the job or a BFOQ. However, an employer who claims a BFOQ exists for a particular job must be able to prove a person of a certain race is required because a worker’s ability to do the job is actually diminished if he or she is not a member of that race.
14. What about policies that affect one race more than another, do they constitute discrimination?
Discrimination based on a natural physical characteristic associated with race, such as skin color, hair texture, or certain facial features is against the law, even though not all members of the race share the same characteristic. Title VII also makes it illegal to discriminate based on a condition that affects a certain race or tends to affect a certain race, unless the practice is job-related and necessary for business. As previously mentioned, since sickle cell anemia predominantly occurs among African-Americans, a policy that excludes individuals with sickle cell anemia must be job-related and necessary for business. Similarly, a “no-beard” employment policy may discriminate against African-American men who have a predisposition to pseudofolliculitis barbae (severe shaving bumps) and is illegal unless the policy is job-related and a business necessity.
If there are height and weight requirements, they must be necessary for the safe and efficient performance of job-related tasks, because such requirements may exclude or limit women and members of some racial and ethnic groups. An employer, therefore, must show that the requirement is necessary for the safe and efficient performance of job-related tasks. If there is a less restrictive way to accomplish the same goal other than a minimum height requirement, employers are required to use that alternative to avoid liability for discrimination.
15. My company has an affirmative action plan. How can this affect me?
Affirmative action goals and timetables are targets for equality and a level playing field. Like goals for profits or productivity, they mark and measure progress, but do not carry legal penalties. Quotas are illegal unless they are court ordered as a remedy for discrimination. Your company’s affirmative action plan may be voluntary or may be required by law if your company has contracts with federal, state or local governments or has a past history of discrimination.
Much of the opposition to affirmative action is based on what are called “reverse discrimination” and “unwarranted preferences.” However, less than 2 percent of the 91,000 employment discrimination cases pending before the Equal Employment Opportunities Commission are reverse discrimination cases. Under the law as written and interpreted by the courts, anyone benefiting from affirmative action must have relevant and valid job or educational qualifications.
If your employer has an affirmative action plan, it may help eliminate some of the barriers to advancement that racial minorities have faced historically, maybe even working for your employer. You may wish to consult with your company’s human resource department or your personnel handbook to learn more about how the plan may benefit you and other employees who are racial minorities.
16. What is the difference between race discrimination and racial harassment?
Racial harassment is a form of race discrimination, and that is a violation of Title VII. Although Title VII does not specifically use the words “racial harassment,” courts have held that racial harassment is race discrimination and thus violates the law.
As noted throughout this fact sheet, there are many forms of race discrimination that are not racial harassment, such as discrimination in hiring, firing, promotions or benefits, pay discrimination, and racial stereotyping.
17. What if I don’t have direct evidence of race discrimination, do I lose my case?
No, most of the time, it is difficult to come up with direct evidence of discrimination. You can prove racial discrimination indirectly. You must make a prima facie case of discrimination, which is Latin for “on its face” or “at first glance.” A race discrimination lawsuit has four parts:
You are in a protected class.
You are qualified for a job or performing it adequately.
You were denied a job benefit, or subject to a negative job action.
The person who received the job or benefit was a different race, or the company continued to search for other “qualified” applicants
Example: If you were denied a promotion and you believe it was because you are Mexican, you would have to prove that you qualified for the promotion, didn’t get it, and the person who got it is not Mexican.
The Equal Employment Opportunity Commission (EEOC) is the agency of the federal government responsible for investigating charges of job discrimination relating to race discrimination in workplaces of 15 or more employees. Most states have agencies that enforce state laws against discrimination. For more information, see question 22 below.
Additionally, at both the federal and state level, time is a key consideration. There are often strict timelines for reporting and filing claims of racial discrimination, so if you feel you have been discriminated against, it may be best to contact an employment attorney in your area as soon as possible.
Victims of race discrimination can recover remedies that include:
compensatory damages (emotional pain and suffering)
punitive damages (damages to punish the employer)
other actions that will make an individual “whole” (in the condition she or he would have been in if not the discrimination had never occurred).
Remedies also may include payment of:
expert witness fees
An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their right to be free from discrimination, harassment, and retaliation. If necessary, such notices must be accessible to persons with visual or other disabilities that affect reading.
The employer also may be required to take corrective or preventive actions regarding the person(s) responsible for the discrimination, take steps to minimize the chance it will happen again, as well as stop the specific discriminatory practices in the case. Your state law may allow for greater or different remedies than federal law. For more information, see question 22 below.
20. What is the difference between the federal anti-discrimination laws and state laws?
State legislation covering workplace generally mirrors federal law in prohibiting discrimination based on race. The primary differences are in the procedures used and agencies contacted to make a claim of discrimination. For more information, see question 22 below.
21. How can I file a complaint?
For more information on filing a complaint for race discrimination, select your state from the map or list below.
race discrimination national origin discrimination
religious discrimination age discrimination
disability discrimination retaliation
Federal laws prohibit discrimination based on sex with respect to all terms and conditions of their employment, including but not limited to: hiring, compensation, promotion, treatment on the job, termination.
Federal laws protect employees from being treated less favorably, receiving fewer job or promotional opportunities, termination and more—including allowing an employee to be subjected to severe or pervasive harassment—based on race.
National Origin Discrimination
Federal laws protect employees from being treated less favorably, receiving fewer job or promotional opportunities, termination and more—including allowing an employee to be subjected to severe or pervasive harassment—based on national origin.
Federal laws prohibit discrimination on the basis of disability in all employment practices. An employer may not discriminate against a qualified individual with a disability because of that employee’s disability, nor may the employer deny the employee a reasonable workplace accommodation that would allow the employee to perform his or her job.
Federal laws prohibit employers from discriminating against employees on the basis of their religion. This discrimination may come in the form of adverse employment actions, but may also include harassment based on an employee’s religion. Employers are also required to provide reasonable accommodations for their employees’ religious practices and beliefs unless the employer can demonstrate that such an accommodation would cause them an “undue hardship.”
Federal laws prohibit the mistreatment of workers age 40 and over because of their age. This includes all aspects of employment including hiring, promotions, training, salary, job assignments and termination. Workplace age discrimination also includes harassment based on age that creates a hostile or offensive work environment.
Federal laws protect employees who oppose discriminatory conditions at work and face retaliation for their actions. Unlawful retaliation can include refusal to hire, demotion, tranfer to undesirable job duties, or termination of the employee who has filed a charge of discrimination with the employer or with the Equal Employment Opportunity Commission (EEOC), or has participated in the investigation of discrimination.
Title VII of the Civil Rights Act of 1964 – prohibits workplace discrimination based on an employee’s race, sex, national origin, or religion.
The Americans with Disabilities Act (ADA) – prohibits workplace discrimination based on an employee’s disability.
The Age Discrimination is Employment Act (ADEA) – prohibits workplace discrimination based on an employee’s age.
Adverse actions, such as, workplace harassment and terminations, often occur due to a blend of discriminatory and non-discriminatory motivations.
For instance, an African American employee gets into an altercation with a white employee. The African American employee is terminated but the white employee is retained. Both employees have comparable work records and are equally to blame for the altercation. In this example, the race of the African American employee could be “a motivating factor” in his or her termination.
A race discrimination claim could advance under a “mixed motive” theory. Plaintiff prevails simply by proving that his or her race was “a motivating factor.” Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
Elements of a “Mixed Motive” Theory:
Plaintiff is a member of a protected group (race, sex, national origin, religion, etc.) and suffered some sort of adverse employment action.
Protected status was “a motivating factor” in the decision.
“[A]n unlawful employment practice is established when the complaining party demonstrates that…[protected status (not including retaliation)] was a motivating factor for any employment practice, even though other factors also motivated [and indeed may have caused] the practice.” [Sec. 107 of the Civil Rights Act of 1991]
In Desert Palace v. Costa, 123 S. Ct. 2148 (2003), the U.S. Supreme Court concluded that plaintiffs could use direct or circumstantial evidence to make the showing necessary to merit a mixed-motive jury instruction. “[I]t is sufficient for the [plaintiff] to demonstrate that the employer was motivated to take the adverse employment action by both permissible and forbidden reasons…” Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir. 2004).
On February 28, 2014, a federal jury, at the Greenbelt, MD federal courthouse, issued a verdict that means Prince George’s County Public Schools can be found liable under Title VI for race discrimination and retaliation. Specifically, the jury decided that Prince George’s County Public School received federal assistance, starting in 2009, which had the primary objective of providing employment. In 2009, PGCPS, which has a annual budget of approximately $1.7 billion, received $140 million in federal stimulus funds which it used to avert laying off hundreds of teachers and other school workers.
The verdict allows Jon Everhart’s $5 million race discrimination/retaliation lawsuit to advance to trial. The trial is scheduled to begin on July 15, 2014. Mr. Everhart, a white English teacher, alleges that he was racially harassed by Principal Angelique Simpson-Marcus of Largo High School, who is African American. The standard of prove under Title VI is the same as under Title VII, except Title VII has a cap on damages of $300,000 while Title VI has no cap on damages.
Mr. Everhart was hired by PGCPS and assigned to Largo High School in 2003. From 2003 until 2009, Mr. Everhart was a popular teacher who taught English literature and received perfect job performance evaluations from several Largo High School principals. In the fall of 2007, Principal Simpson-Marcus became the principal of Largo High School. In 2009 and 2010, Principal Simpson-Marcus gave Mr. Everhart unsatisfactory job performance evaluations which resulted in his termination in June 2010.
In 2003, students informed Mr. Everhart that Ms. Simpson-Marcus, then a physical education teacher, told her gym class: “The only reason a white man teaches in PG County is that they can’t get a job elsewhere.” Mr. Everhart filed a union grievance against Ms. Simpson-Marcus alleging racial harassment. Shortly thereafter, Ms. Simpson-Marcus told Mr. Everhart that if she ever became principal, he would be the first person she would fire.
In the summer of 2007, Ms. Simpson-Marcus became the principal of Largo High School. Beginning in the fall of 2007, Principal Simpson-Marcus told Mr. Everhart that she would fire him and take away his teaching certificate as “payback” for a time when white principals mistreated black teachers. Principal Simpson-Marcus called Mr. Everhart “poor white trash” and “white bitch” to his face and made similar comments about Mr. Everhart in the presence of his students. Principal Simpson-Marcus told Mr. Everhart that he needed to transfer to a white suburban school, which she referred to as “Whiteville”. Mr. Everhart observed Principal Simpson-Marcus harassing other white teachers as well.
PGCPS would not allow Mr. Everhart to transfer to another school. In 2009, Mr. Everhart became depressed and his blood pressure rose to dangerous levels. Mr. Everhart complained about Principal Simpson-Marcus to anyone who would listen. Principal Simpson-Marcus retaliates against African American teachers and staff who speak up on Mr. Everhart’s behalf with threats and racial and sexual name-calling, such as, “black bitch” and “black ass”. The jury verdict also allowed two of these African American plaintiffs to go forward with their race discrimination lawsuits against Principal Simpson-Marcus.
Mr. Everhart, and other working on his behalf, complained verbally and in writing about Principal Simpson-Marcus’s racial harassment to school board officials, including former Superintendent William Hite. Despite these complaints, PGCPS never conducted an investigation and never took corrective action against Principal Simpson-Marcus. During his final two years, Principal Simpson-Marcus repeatedly wrote up Mr. Everhart and gave him negative job performance evaluations which lead to his termination in June 2010.
Title VI allows relief for employment discrimination when “providing employment is a primary objective of the federal aid”. Venkatraman v. REI Systems, Inc., 417 F.3d 418, 421 (4th Cir. 2005); Trageser v. Libbie Rehabilitation Ctr., Inc., 590 F2d 87 (4th Cir. 1978) (“…employment is a primary objective of the federal aid”). Title VI applies even if the plaintiff is not the ultimate beneficiary of federal financial assistance, such as, a student.
34 C.F.R. § 100.3(c) Employment practices states:
§ 100.3Discrimination prohibited. (c) Employment practices. (1) Where a primary objective of the Federal financial assistance to a program to which this regulation applies is to provide employment, a recipient may not (directly or through contractual or other arrangements) subject an individual to discrimination on the ground of race, color, or national origin in its employment practices under such program (including recruitment or recruitment advertising, employment, layoff or termination, upgrading, demotion, or transfer, rates of pay or other forms of compensation, and use of facilities)…
The American Recovery and Reinvestment Act, Public Law III-5, states in Section 3(a)(1) that the purpose of the Act includes “To preserve and create jobs and promote economic recovery.” The Act states the following:
SEC. 3. PURPOSES AND PRINCIPLES. (a) STATEMENT OF PURPOSES.
The purpose of this Act includes the following:
(1) To preserve and create jobs and promote economic recovery.
On April 9, 2012, a Maryland federal court issued an opinion that recognizes Title VI (race discrimination and retaliation) claims against the Board of Education of Prince George’s County, because the school board received federal stimulus funds.
Title VI of the Civil Rights Act of 1964 protects people from discrimination based on race, color, or national origin in employment and employment practices in programs or activities receiving Federal financial assistance.
From 2009 to 2012, the Board of Education of Prince George’s County was the recipient of over $100 million in federal assistance under the American Recovery and Reinvestment Act of 2009 (ARRA) from the State Fiscal Stabilization Fund and the Education Job Fund. Ten pending lawsuits against the Board of Education of Prince George’s County allege race discrimination and retaliation by the school system.
§2000d Prohibition against exclusion from participation in, denial of benefits of, and discrimination under federally assisted programs on ground of race, color or national origin
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Title VI, like Title IX, also encompasses claims of retaliation. Jackson v. Birmingham Bd. Of Educ., 544 U.S. 167 (2005); Preston v. Virginia, 31 F.3d 203 (4th Cir. 1994).
For plaintiffs, Title VI has advantages over Title VII:
1) Under Title VI, the plaintiff need not file a complaint with the Equal Employment Opportunity Commission (EEOC) before fiing a lawsuit in federal court. Under Title VII, the plaintiff is required to file a complaint with EEOC as a prerequisite to filing a lawsuit in federal court.
2) Under Title VI, depending on the state, the plaintiff could have three years in which to file a lawsuit in federal court. Under Title VII, the statute of limitations for filing a complaint with EEOC is generally 180 days.
3) Under Title VI, there is no stated limit on damage awards. Under Title VII, compensatory and punitive damage awards are capped at $300,000.
A word of caution: In private actions, Title VI requires that the defendant receive “actual notice” and exhibit “deliberate indifference”. These requirements severely restrict the use of Title VI in private actions.