Current Events

Wednesday, May 4, 2016

Retaliation in the Workplace

In current workplaces, racial and ethnic discrimination in employment can be subtle, particularly in office and other white collar professions,  or shockingly blatant.   People of color who are have higher education and hold state licensed certifications to legally provide highly skilled services, may be relegated to more menial tasks, which do not even require the expertise and knowledge that they acquired through their education and training. Discrimination based on race or ethnicity does not have to be blatant for the victim to file a valid complaint of discrimination. If an employer retaliates against an employee, such as by reducing the employee’s hours, assigning more menial tasks, or outright termination, because the employee reported and/or complained about discrimination, New Jersey and Federal Courts have held, that the complainant has a valid claim to bring a lawsuit for unlawful retaliation, even if the facts bear out that there was no underlying prior initial discrimination.

Racially motivated intimidation and harassment occurs in more liberal areas of the US, from New Jersey to California, and is not confined only to the deep South as many living in historically more liberal areas might suppose. Cases are still being filed regularly all over the country.  Recently, not long after Martin Luther King, Jr. Day, 2016, an African-American man,  James H. Brown, filed a discrimination lawsuit against a construction company, his employer in San Francisco. In his complaint, he alleges that he and another African-American employees suffered humiliation and ill treatment on a daily basis because of race discrimination. As reported in the press, although hired by his employer in August of 2015 as an ironworker on the San Francisco Bay Bridge in Oakland, and although certified as a  welder, Brown and other African-American workers were assigned menial chores, such as sweeping, picking up trash, and cleaning the job site. All the time, non-African-American workers were provided with tasks in keeping with their professional training. 

Brown alleges that only a month after his hire, the harassment turned into out-and-out threats, prompted simply by his racial identity. In September of 2015, a white foreman lowered a hangman's noose in front of him while he was engaged in rigging work near the Bay Bridge toll plaza. Approximately 20 minutes later, a white co-worker told Brown to wear a rope around his neck.

He further alleges that  he was retaliated against when he reported these two noose blatant acts of intimidation. He alleges he was retaliated against because after he reported these acts, his employer reduced his work hours. 

In a racial case in New York, also considered to be one of the more liberal areas of the US, just a month after FDNY communications electrician filed a race discrimination complaint against the FDNY, he alleged he found a found an ominous item waiting for him when he went into the locker room: that  he discovered a noose in front of his locker. 

Racism can be shocking blatant. In the year 2012 for example, as reported in Federal Agency statistics:

 • In December 2012, a South Dallas, TX mill agreed to pay $500,000 to a class of 14 Black employees to settle a race discrimination suit alleging that the mill exposed Black employees to violent, racist graffiti and racial slurs by co-workers, such as "KKK," swastikas, Confederate flags, "white power" and other racist terms, including "die, n----r, die," as well as the display of nooses at an employee workstation. Black employees alleged that the supervisors allowed the behavior to continue unchecked. The consent decree permanently enjoins the company from discriminating against employees on the basis of race and requires the company to enact a graffiti abatement policy and undergo annual reviews of its compliance for two years.

• In October 2012, a federal district court in Texas ordered AA Foundries Inc. to take specific measures to prevent racial harassment of Black employees at its San Antonio plant following a $200,000 jury verdict finding the company liable for race discrimination under Title VII. According to the EEOC, evidence at trial indicated that a White supervisor used "the N word" in reference to Black employees, called male Black employees "motherfucking boys," posted racially tinged materials in an employee break room, and accused Black employees of "always stealing and wanting welfare." After several employees filed racial harassment charges with the EEOC, a noose was displayed in the workplace. When some employees complained, the supervisor allegedly replied the noose was "no big deal" and that workers who complained were "too sensitive." Additionally, at trial, he also admitted it did not bother him to hear racially derogatory language in the workplace. In a judgment entered Oct. 9, the district court upheld the jury verdict that AA Foundries must pay punitive damages of $100,000 to former employee Christopher Strickland, $60,000 to former employee Leroy Beal, and $40,000 to former employee Kenneth Bacon. 

• In August 2012, a Tampa, Fla.-based environmental services company agreed to settle a race discrimination and harassment case brought by the EEOC and eleven intervening plaintiffs for $2,750,000 and other relief. In the lawsuit, Plaintiffs alleged that the harassment of African American employees included multiple displays of nooses, the repeated use of the "N-word," and physical threats. They also claimed that four White employees were harassed by their White co-workers because they associated with African-American employees. Two African-American employees also alleged they were fired because of their race and two White employees asserted they were fired for engaging in protected activity and in retaliation for associating with African-American employees. At summary judgment, the district court denied in part the company's motion, stating that the company ignored both the extreme symbolism of a noose and that a reasonable jury could conclude that the worksite had at least some racial tension given the other nooses, threats, and racial epithets that each African-American employee experienced, and that the noose was intended to intimidate all African-Americans. 

• In June 2012, Yellow Transportation Inc. and YRC Inc. agreed to settle for $11 million in a suit alleging that the trucking companies permitted the racial harassment of Black employees at a now-closed Chicago Ridge, Ill., facility. The proposed consent decree would settle both EEOC's suit and a private suit filed in 2008 by 14 Black employees under the Civil Rights Act of 1866 (42 U.S.C. § 1981), which were consolidated for purposes of settlement. Plaintiffs claimed that Black employees at the Chicago Ridge facility, which closed in 2009, were subjected to multiple incidents of hangman's nooses and racist graffiti, comments, and cartoons. 

Racial discrimination as shockingly blatant as in the examples listed above, is far less common than today’s subtle discrimination business practices, such as promoting white employees more frequently than their equally qualified co-workers of color, and/or giving higher salary increases to whites who are promoted than to persons of color who are promoted to management positions.

In New Jersey, job mis-classification of workers of color to avoid paying them overtime wages is another tactic of discriminatory practices and such business practices violate New Jersey’s Wage and Hour laws under § 541.2,  Job titles insufficient,  and the Fair Labor Standards Act.
If you feel your employer failed to promote you because of your race or ethnicity, or have been terminated from your job and think that your race or ethnicity may have been a factor, or that you have been harassed or retaliated against for asserting your rights, it is essential for you to contact an experienced, competent and compassionate employment discrimination attorney who will be aggressive about enforcing your rights.

Every situation is fact specific, and if you are a person who believes you may be the victim of the employer's discrimination or if you were harassed and/or terminated and believe that retaliation for asserting your rights may have been a factor, please contact Hope A. Lang, Attorney at Law, today for a free consultation. 

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