Ch06 Race Discrimination.docx

Race Discrimination Chapter Objectives: The objectives of the chapter are for the student to learn what constitutes race discrimination and to be able to recognize it when they see it so they can avoid potential liability. As with other chapters in this section, it is extremely important to be able to not just know that one must not discriminate on the basis of race, but also to be able to recognize race discrimination and remedy it before liability attaches. Once finished with the chapter, the student should be able to do this. Authors’ Note It would be an injustice to the students to teach this subject matter as if it were simply a litany of facts and rules. There is so much more and it will be of the utmost benefit to the students if you can "mine" this and let them walk away with an incredible amount of information about themselves and the world that will help them make justifiable and informed workplace decisions regarding Title VII actions and other workplace matters. Most students will have been born when race discrimination in employment was illegal. Many of them will have come into consciousness during the past 12 years of the Bush and Reagan administrations when much of what they heard about employment discrimination was negative and framed around the issue of affirmative action. As a result, they may have very negative ideas about the issue. They will often think there really is no problem with race because they may have seen very little of the obvious type, but they will have heard tales of unqualified blacks and women taking jobs from more qualified whites. It greatly facilitates learning to take some time to address this and to lay the groundwork for what is to come. Students need to be made aware that though it is illegal to discriminate in employment and has been for 30 years, there is still much of the issue remaining in employment and society. Negative images from the media, news stories, and personal experiences invariably find their way into the workplace and have a negative impact upon women and minorities of all kinds. Race is an issue that is fraught with all sorts of "baggage" which we all bring to the table that can impact what students learn about the issue. It is extremely important not to, on the one hand, address this issue as if you are reciting math facts, but instead to deal with it head on and acknowledge the presence of the issue in our society, and on the other, to make students understand that it is inevitable that we have all picked up "garbage" about this issue, from the media, our parents, peers, etc. We start out as empty garbage cans. There is no filter to keep out the racist, sexist or otherwise exclusionary ideas that may come from our parents, peers, the media and other sources long before we even understand that such ideas may be wrong. The point is not to own all of that or try to defend ourselves or try to argue that we are not racist or prejudiced, but rather, to acknowledge that with the society we live in, it is inevitable that we would pick up these things and incorporate them into our lives. Acknowledging this is the first step to doing something about it and for the sake of our employers, we must learn to recognize and avoid those things which may result in liability. Have students understand that it is not just the big things like calling those of other groups derogatory names, or saying obvious things like "we don't hire Mexicans," that gets most employers in trouble. It can instead be a compilation of many smaller things many people do, often without even being aware of it, which, when analyzed and tallied, amount to a different experience for those not in the "majority" group. Even though this can be a difficult topic to discuss, if done effectively, students see from different eyes from then on and are much less likely to be cause liability for their employer. Scenarios - Points for Discussion Scenario 1: An employer has a "no beard" policy which applies across the board to all employees. A black employee tells the employer he cannot shave without getting severe facial bumps from ingrown hairs. The employer replies that the policy is without exception and the employer must comply. The employee refuses and is later terminated. The employee brings suit under Title VII on the basis of race discrimination. Does he win? Why? Why not? Yes, the employee wins. Courts have actually held both way, but the more conservative approach is that the policy has a disparate impact upon black males who have a much higher tendency to suffer from pseudofolliculitis caused by shaving. Because of the disparate impact, the no-beard policy should be supportable by a legally defensible business necessity. Richardson v. Quik Trip Corp., 591 F. Supp. 1151 (S D Ia., Central Div. 1984) Scenario 2: Two truck driver employees are found to have stolen goods from the cargo they were carrying. The black employee is retained and reprimanded. The white employee is terminated. The latter employee sues the employer for race discrimination under Title VII. Who wins and why? The white employees win. Everyone is protected against discrimination on the basis of race under Title VII, not just blacks. McDonald v. Santa Fe Trail Transportation, 427 U.S. 273 (1976). Scenario 3: A black female employee is terminated during a downsizing at her place of employment. The decision was made to terminate the two worst employees, and she was one of them. The employer had not told the employee of her performance nor given her any negative feedback during evaluations to enable her to assess her performance and govern herself accordingly. In fact, there were specific orders not to give the employee any negative feedback. The employee sues for racial discrimination in violation of Title VII, alleging it was a violation of Title VII for the employer not to give her appropriate negative feedback during evaluations to prevent her from being put in the position of being terminated. Does the employee win? Why? Why not? The employee wins. It is race discrimination under Title VII for the employer to treat the black, female employee differently from the other employees, particularly in a way which has such an adverse effect upon her employment. Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990). LECTURE NOTES New Millennium, Old Problems 1. The driving force for the Civil Rights Act of 1964 was addressing discrimination because of race. See Exhibit 6-2's pre-1964 classified ad page with categories dividing jobs by race, with columns for "colored" employees. 2. While much of the discrimination now occurring in the workplace is not as overt as it was before Title VII, race can still be very much a factor in employment. See Exhibit 6-1 on racial differences between blacks and whites. 3. A 1991 U.S. Department of Labor Glass Ceiling Study of barriers to full management participation in the workplace by women and minorities indicated that minorities had made strides in entering the workplace, but a "glass ceiling" exists, beyond which minorities rarely progress. 4. The study found that: A. Minorities plateau at a lower corporate level than women, who plateau at a lower level than white males. B. Monitoring for equal access and opportunity was almost never considered a corporate responsibility or part of the planning and developmental programs and policies of the employer, nor as part of participation with regard to senior management levels. C. Neither employee appraisals or total compensation systems were usually monitored. Most companies had inadequate records regarding equal employment opportunity and affirmative action responsibilities in recruitment, employment and developmental activities for management-level positions. 5. Such factors militate against serious consideration of full participation by all sectors of the work population and prevent the employer from being presented in the best light should lawsuits arise in the area. 6. History and its present-day effects account for much of this. Africans arrived in the U.S. in 1619, before the Mayflower. Their initial experience was as free people who were contracted as indentured servants. After the first 40 years or so, this changed, and slavery came into existence. While many blacks were free, slavery as an integral part of American life lasted for over 200 years. 7. With a slight pause for Reconstruction after the Civil War, the next 99 years saw Black Codes and Jim Crow laws legalize and codify racial discrimination. See Exhibit 6-3 for a profile of the late U.S. Supreme Court justice Thurgood Marshall and his contributions to breaking down legalized racial barriers. 8. For virtually their entire history in this country blacks were dealt with in one way, with societal laws and mores totally built around this approach. Then came the Civil Rights Act of 1964 attempting to change this 200+ year history in one fell swoop. Exposure to how race discrimination can arise should prepare the employer or manager for recognizing and combating it effectively in the workplace. Failure to see or recognize race discrimination when it occurs keeps the problem going and places the employer at risk. National origin and ethnicity are addresses in a later chapter. General Considerations 1. Title VII was enacted for the most part in response to discrimination against blacks in this country but the Act applies equally to any race. Case Example: McDonald v. Santa Fe Trail Transportation, 427 U.S. 273 (1976) Issue: Whether Title VII protects white employees from discrimination. Facts: Two white employees and one black employee misappropriated cargo from one of the employer's shipments. The two white employees were discharged and the black employee was not. The white employees sued the employer for race discrimination. Decision: For the employees. The Court held that Title VII is not limited to discrimination against members of any particular race and applies equally to whites and blacks. Case Questions 1. Does it seem consistent with Title VII for the Court to hold as it did? Student response. 2. Do you agree with the employer's "isolated case" argument? Student response. 3. How does this holding square with what you know of affirmative action? Student response. Students often say they are surprised to know that discrimination laws protect whites as well as blacks and that there are such stringent requirements for affirmative action plans. Requirements which ensure that those likely to be adversely affected by such plans suffer the least amount of adversity, with the greatest amount of protection in establishing the plans. LECTURE NOTES Recognizing Race Discrimination 1. Often employers are held liable for race discrimination because they treated employees of a particular race differently without even realizing they were building a case of race discrimination for which they would ultimately be held liable. 2. Intent may be established by direct evidence of discrimination by the employer even when an employer may discriminate for what it considers to be necessary reasons. Case Example: Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990) Issue: Whether it is race discrimination for an employer to not provide an employee with appropriate evaluation feedback which could have prevented her from being laid off, when it's decision not to do so was based on not wanting to have the employee file a discrimination suit. Facts: During a retrenchment, a black female was terminated for poor performance. She alleged race discrimination in that her employer intentionally determined not to give her necessary feedback about her performance that would have helped her perform better and perhaps avoid dismissal. Decision: The court upheld the employee's claim. Although Vaughn's race may not have directly motivated the 1987 decision to fire her, race did play a part in Vaughn's employment relationship with Texaco from 1985-1987. Texaco's treatment of Vaughn was not color-blind during that period. In neither criticizing Vaughn when her work was unsatisfactory nor counseling her how to improve, Texaco treated Vaughn differently than it did its other contract analysts because she was black. As a result, Texaco did not afford Vaughn the same opportunity to improve her performance and perhaps her relative ranking, as it did its white employees. One of those employees was placed on an improvement program. Others received informal counseling. The evidence indicates that Vaughn had the ability to improve. As Texaco acknowledges, she was once its highest ranked contract analyst. Had her dissatisfied supervisors simply counseled Vaughn informally, such counseling would inevitably have indicated to Vaughn that her work was deficient. Had Keller given Vaughn the evaluation that he believed she deserved, Texaco's regulations would have required his placing her on a ninety-day work improvement program, just as at least one other employee--a white male--had been placed. When an employer excludes black employees from its efforts to improve efficiency, it subverts the "broad overriding interest" of Title VII--"efficient and trusty workmanship assured through fair and racially neutral employment and personnel decisions." Texaco has never stated any reason, other than that Vaughn was black for treating her as it did. Had Texaco treated Vaughn in a color-blind manner from 1985-1987, Vaughn may have been fired by April 1987 for unsatisfactory work; on the other hand, she might have sufficiently improved her performance so as not to be one of the two lowest ranked employees, thereby avoiding termination in April 1987. Case Questions 1. Do you agree with the court's decision? Why or why not? Student response. 2. How would you have handled this matter if you were the manager? Student response. 3. What do you think of Edel's remarks about Vaughn becoming the "black matriarch" of Texaco; “meeting behind closed doors,” and “excessive meetings with predominantly blacks?” What does it signify to you? What attitudes might it reflect which may be inappropriate in the workplace? What concern which might be appropriate? Student response. Point out that using the racial term presumes some significance and ask what it might be. LECTURE NOTES 1. An employer who has never had to consider the issue of race may well develop and implement a policy that has a racially discriminatory impact, without ever intending to do so. Case Example: Bradley v. Pizzaco of Nebraska, Inc., dba Domino's, 7 F3d 795 (8th Cir. 1993) Issue: Whether the employer's policy, applicable to all males, of prohibiting beards can be the basis of a race discrimination suit by a black employee terminated for not shaving his beard. Facts: Employee brought a race discrimination case against his employer after being discharged for failure to comply with the employer's policy requiring employees to be clean-shaven. Bradley is a black man who suffers from pseudofolliculitis barbae (PFB), a skin disorder affecting almost half of all black males. The symptoms of PFB--skin irritation and scarring--are brought on by shaving, and in severe cases PFB sufferers must abstain from shaving altogether. Domino's policy provides for no exceptions. As Pizzaco's owner explained, "You must be clean-shaven to work for Domino's." Decision: The court held that the policy had a disparate impact upon blacks and violated Title VII. This case then, is about a facially neutral employment policy that discriminates against black males when applied. Title VII forbids employment policies with a disparate impact unless the policy is justified by legitimate employment goals. Through expert medical testimony and studies, the EEOC demonstrated Domino's policy necessarily excludes black males from the company's work force at a substantially higher rate than white males. In so doing, the EEOC has shown Domino's facially neutral grooming requirement operates as a "built-in headwind" for black males. Dermatologists for both sides testified that as many as forty-five percent of black males have PFB. The EEOC's dermatologist offered his opinion that approximately twenty-five percent of all black males cannot shave because of PFB, however there is not the same effect on white males. Case Questions 1. If you had been the manager, would you have been surprised at this case outcome? Explain. Student response. 2. Why do you think Pizzaco had a no-beard policy? What purpose did it serve? Was there another way to get what Pizzaco may have wanted by instituting the policy? Probably because it was concerned that it's pizza deliverers look "clean cut" since they were going to people's homes and there may be a concern from customers about security. Perhaps they thought a beard made a man look like a "ruffian" or less safe than they wanted a deliverer to look. Rather than have a no-beard policy they could have ? had a public relations campaign addressing the safety of their personnel ? had identification cards for deliverers to show to customers ? made deliverers wear uniforms identifying them as Domino's deliverers ? had deliverers drive vehicles identifying them as Domino's employees, or ? describe the deliverer to the customer when the deliverer left to bring the customer the pizza. These suggestions are given for the purpose of providing students with possibilities for how the employer could have thought of other alternatives to address the same problem. 3. What role should stereotypes play in developing workplace policies? Student response. In the Chandler case, below, it is not the black employees who sue, but rather, the white employee who did not want to discriminate against blacks like her employer wanted her to do. Case Example: Chandler v. Fast Lane, Inc., 868 F. Supp. 1138 (E.D. Ark., W. Div. 1994) Issue: Whether a white employee has a cause of action for constructive dismissal under Title VII if she felt she was forced to leave her job when the employer would not allow her to hire and promote blacks. Facts: The employer had a policy of discriminating against blacks in hiring and promotion. The white plaintiff alleged that the employer thwarted her efforts to hire and promote blacks and as a result, her employment became so intolerable that she was forced to resign. The employer alleged that the white employee had no standing to sue under Title VII since its practices were targeted only at blacks. Decision: Yes, the white employee has a cause of action for race discrimination under Title VII. The “fail or refuse to hire” provision of Title VII which the employer concentrates on misperceives the unlawful employment practice here. Plaintiff does not argue that she was the target of the employer’s policies, but rather that the employer’s policy violated her fundamental right to associate with blacks and as a consequence, the employer committed a separate violation by engaging in an unlawful employment practice that “otherwise discriminate[d] against an individual,” namely plaintiff. The court recognized that the claim was somewhat novel, but believed that since a white person’s right to associate with blacks is protected by section 1981, an employer’s implementation of an employment practice that impinges upon this right is actionable under Title VII. Also, Chandler’s allegations are sufficient to establish a claim under the Title VII provision making it unlawful to discriminate against any employee because the employee opposed any practice unlawful under Title VII.. In addition, forcing Chandler to carry out the unlawful practices would cause an adverse employment action to be visited upon her and this would cause her to work in an abusive or hostile environment in violation of Title VII. Case Questions 1. What do you think of the employer’s argument that since its policies discriminated against blacks, the white employee should not be able to bring a suit for discrimination. Explain. Student response. 2. Do you understand the court’s reasoning that the white employee was being discriminated against by not being able to hire and promote black employees? Explain. Student response. 3. What reason can you think of as to why the employer had the policy of not hiring or promoting blacks? Do you think it makes good economic sense? (Consider all facets of economics, including the possibility of litigation over the policies.) Student response. LECTURE NOTES Racial Harassment 1. In addition to an employer being liable for race discrimination under Title VII, the employer may also be liable for racial harassment in the workplace. 2. The employer is responsible for such activity if the employer him- or herself is the one who perpetrates the harassment, or if it is permitted in the workplace by the employer or the employer's supervisory employees. 3. Actions for racial harassment, like those of race discrimination under Title VII, may be brought under the same alternative statutes as race discrimination, as appropriate; that is, the post-Civil War statutes, state human rights laws or constitutional provisions. 4. Racial harassment has as its basis the employer imposing upon the harassed employee different terms or conditions of employment based upon race. 5. The employee is required to work in an atmosphere in which severe and pervasive harassing activity is directed at the employee because of the employee's race or color. 6. The employer's best approach to racial harassment is to maintain a workplace in which such activity is not permitted or condoned in any way, to take all racial harassment complaints seriously, and take immediate corrective action, if necessary, after investigation. 7. The employer’s prompt response is important. in EEOC v. Scientific Colors, Inc. (N.D. IL, No.99C1959(2002), the employer paid a $1.8 million settlement for harassment despite, among other things, calling the police and FBI, after the litigation began. The Daniels case below is included so that students can see different ways that racial harassment can be manifested and that they change even as technology changes. The court dismissed this case because the employer acted quickly and effectively after the employees complained of the action, but the fact situation is instructive since it is one which could very easily happen in the workplace. Case Example: Daniels v. WorldCom Corp. 1998 U.S.Dist LEXIS 2335 (N.D. Tex. 1998) Issue: Whether it is a violation of Title VII on the basis of racial harassment, and state negligence law, for an employee to receive jokes with racial undertones via e-mail. Facts: Two black employees sued for racial harassment under Title VII after four electronic mail (e-mail) jokes were sent by a non-managerial employee to them and other employees in the workplace. The employees told the sender that they objected to the e-mails as having racial undertones, but three days later she sent three more jokes. The employees complained to two managers, who then gave the sender a strong verbal warning and placed a written reprimand in her personnel file. A staff meeting was held and the sender was dismissed and others warned about using the e-mail system for non-business purposes. Another meeting was held in which the receivers were allowed to voice their displeasure about the jokes and the receivers were asked to help review the company’s e-mail policy. Decision: The court determined that the negligence action failed because the employer acted reasonably after discovering the problem. It dismissed the claim. Case Questions 1. Does it surprise you that there would be liability on the part of employers for harassing e-mails sent from a workplace computer? Student response. 2. Do you agree with the court that the employer quickly and appropriately addressed the problem here so that liability should not attach? Student response. 3. If you were the manager to whom the employees came reporting the e-mail jokes, what would you have done? Student response. LECTURE NOTES A Word about Color 1. Color is one of the five categories included in Title VII as a prohibited basis for discrimination. 2. Despite the findings reflected in Exhibit 6-4 that darker blacks are more likely to be discriminated against, few cases have been brought using color as a basis for discrimination, and those only in the late 1980's. 3. With the opening of the area by the two recent cases, and the realization of the information in the above box, color may become an emerging area of litigation. 4. Employers should be aware of this and guard against it, as with the other categories. 5. In both recent cases, it was a black supervisor who was alleged to have discriminated against the employee. Employers should not miss the possibility of this problem by thinking there cannot be discrimination since two people of the same race are involved. Case Example: Walker v. Secretary of the Treasury, Internal Revenue Service, 742 F. Supp. 670 (N.D. Ga., Atlanta Div. 1990) Issue: Whether Title VII permits suits on the basis of color discrimination, particularly if both parties involved are black, though different shades. Facts: A light-skinned black employee sued her employer alleging discrimination by her supervisor based on color. The employee alleged that the supervisor, a brown-skinned black, said and did derogatory things to her because the supervisor resented the employee's lighter skin color. Decision: For the employer. The court recognized that color could be a basis for discrimination under Title VII, but held that the employee failed to demonstrate that the employer had discriminated since there were legitimate nondiscriminatory reasons for the dismissal. Case Questions 1. Do you think the court was correct in interpreting Title VII to permit a color discrimination case to be brought by a black employee against a black supervisor? Why or why not? Student response. 2. If you were the manager here, what would you have done to deal with plaintiff and her supervisor? Student response. 3. Since the statements were insufficient to show discrimination, what else do you think plaintiff could have used to satisfy the court? Do you think the case would have been decided differently if the supervisor was a different race than the employer? Student response. Perhaps if she had had witnesses, the court would have been persuaded that she was telling the truth. Also, if there had been less evidence of personality conflict rather than color conflict, the court may have been persuaded. However, an argument can be made that these are not the kinds of statements that a supervisor would make in front of others, so requiring corroboration virtually kills the possibility of bringing the action. Also, the personality conflict and color issue may have been a "vicious cycle" so that the two were difficult to separate. That is, the personality differences arose from the color issue and the two fed on each other. LECTURE NOTES The Reconstruction Civil Rights Acts 1. Title VII was not the first piece of legislation aimed at discouraging racial discrimination. 2. The previous laws did not apply to as broad a range of employers as Title VII and did not provide a full and comprehensive statutory scheme for addressing the evils they were directed to. 3. As a result, litigation was not as active as it is under Title VII. A. 42 U.S.C. Section 1981 Section 1981. Equal rights under the law All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens .... . 1. This provision of the post Civil War statutes has been used to a limited extent in the past as a basis for employees suing employers for racial discrimination in employment. 2. The Court held, in 1975, that section 1981 prohibits purely private discrimination in contracts, including employment contracts. 3. In Patterson below, the limitations of section 1981 become evident. Patterson was nullified by the Civil Rights Act of 1991. Case Example: Patterson v. McLean Credit Union, 491 U.S. 164 (1989) Issue: Whether 42 U.S.C. section 1981 permits an action for race discrimination after the making of an employment contract, during its performance stage. Facts: A black female alleged a long list of actions over the course of her employment amounting to racial discrimination in violation of section 1981 in that she was treated differently from white employees and not promoted, on the basis of race. Decision: The court held that section 1981 was not available to address this problem since the case did not involve the making of a contract, but rather, its performance. Case Questions 1. Do you think justice was served in this case? Explain. Why do you think Patterson waited so long to sue? Student response. I have included the latter question because students seem to find it difficult to deal with the substantive issues in the case because they cannot understand why anyone would stand for such treatment for so long. Perhaps you can discuss with them how the point of view of a black employee in an isolated situation like this might play a role. If the treatment of the employee and the comments made, particularly initially upon her hire, were reflective of the environment of the place in which Patterson lived, she may well have felt that this was as good a job as she could get, so she should just “shut up and take it.” Also, discuss with them how these items she alleges contributed to her difference in treatment may have seemed fairly insignificant at the time, particularly if she had to report them. After all, telling someone that your supervisor looked at your for minutes at a time just doesn’t sound like a big deal. Also, in an effort to try to make the best of things, we often just go along, trying to bear it, until some precipitous event happens. Here, it was her termination. This is also a place where you can have them look at the micro vs. the macro picture. Each of these things, in and of themselves, may not have seemed like a big deal, but taken together, they created quite a different workplace for Patterson than the white employees. At any rate, don’t allow the students to get so carried away on the issue of why she waited so long to sue until they miss the bigger issue of Patterson’s difference in treatment and how it was a combination of little things that added up to race discrimination. 2. If you had been the manager when Patterson initially interviewed, would you have made the statement about whites not accepting her? Why or why not? Student response. 3. When looking at the list of items Patterson alleged McLean engaged in, do any seem appropriate? Why do you think it was permitted? Student response. LECTURE NOTES 1. The Civil Rights Act of 1991 specifically overturned the McLean decision regarding section 1981 not permitting actions against an employer for racially discriminatory actions which occurred during the performance of the contract rather than in making or enforcing the contract. 2. The limitation on damages which the Court spoke of as part of Title VII's administrative scheme no longer applies because the Civil Rights Act of 1991 now permits recovery of compensatory and punitive damages. B. Other Reconstruction Civil Rights Acts Section 1983. Civil Action for deprivation of rights Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 1. The Civil Rights Act of 1871, codified as 42 U.S.C. section 1983 protects citizens from deprivation of their legal and Constitutional rights, privileges and immunities, under color of state law. 2. Someone acting on behalf of the state cannot deprive a person of their rights. 3. Example: The police officers who were videotaped beating Rodney King during his arrest in Los Angeles in 1991. While performing their duties as government employees, they were alleged to have deprived King of his rights by using excessive force and thus depriving him of his rights under color of state law. 4. In the employment area, a city fire department or municipal police department or other governmental entity may discriminate against an employee on the basis of race, gender or one of the other protected bases that are secured to the employee by federal and state law. 5. Section 1983 is used in employment cases when the employer is a governmental entity or, appropriate cases, an employer may be is closely connected with the governmental entity. 6. Neither the Fourteenth Amendment or section 1983 may be used for discrimination by private employers. They both redress actions by state personnel. The state itself may not be sued without its permission because of the Eleventh Amendment to the Constitution, but rather, the action is brought against the state official in his or her individual and official capacity. Section 1985. Conspiracy to interfere with civil rights--Preventing officer from performing duties Depriving persons of rights or privileges (3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any rights or privileges of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators. 1. Section 42 U.S.C. Section 1985 is also known as the Ku Klux Klan Act 2. The law addresses conspiracies to interfere with or deprive the civil rights of others. 3. It is not used nearly as much as the other post-Civil War statutes, and Title VII is used more than all of them. 4. It is only under Title VII that an employee can file a charge with the EEOC, its enforcing agency, and have the case handled free of charge. 5. The other cases must be brought by the employee suing the employer in court--many times a formidable task when the employee has often been discharged from employment and may have no funds to do so. 6. Unlike actions under Title VII, those brought under the Reconstruction Era statutes have no administrative structure to file complaints and have them addressed in an agency proceeding. These cases must be brought by the employees on their own. 7. Employees can also sue under the state or federal constitution for a denial of equal protection or under state tort laws for defamation, intentional infliction of emotional distress, assault or any other tort that the facts may support. Chapter-End Questions 1. Plaintiff, a black firefighter, brings an action against the fire department for racial discrimination. The employee alleges that each time he is transferred from one fire station to another, he must take his bed with him, on orders of the fire chief. The chief defends on the basis that it is a legitimate decision because white firefighters would not want to sleep in the same bed in which a black firefighter slept. Who wins and why? The firefighter. This is based on a true case based on a southern Georgia fire department, reported in a local newspaper in 1992 or so. It is clearly disparate treatment based upon race, as the firefighter is required to carry around his bed from place to place, while white firefighters are not. Appropriate relief would likely be an injunction prohibiting further requirements of this sort being imposed upon nonwhite firefighters. 2. A white college receptionist is fired when it is found that she told a black college applicant that the applications for admissions are distinguished by race by the notation of a small "RH" in the corner of black applicants' applications. "RH", she says, is her supervisor's term for "raisin heads", which he calls blacks. Is the employee entitled to reinstatement? Most likely. This is a case in which the employee was terminated for failure to comply with discriminatory treatment of applicants as a condition of employment. This is something that would likely not have occurred had the employee been black. In addition, there is the possibility of an action by the employee for retaliation for rights protected by Title VII. Based on a true case reported in the press. 3. It is discovered that, at a health club, the owner has been putting a notation on the application of black membership applicants that reads "DNWAM", which means, "do not want as member." In addition, the black membership applicants are charged higher rates for the club fee, and are much less likely to be financed, as other, non-black applicants are. Can the black membership applicants bring a successful action under Title VII? No. Title VII deals only with discrimination in employment. Based on an actual case. 4. A black female employee is told that she cannot come to work with her hair in decorative braids and if she continues to do so, she will be terminated. Does the employee have a claim under Title VII? It depends. This could be considered a grooming code matter and the employer is given much leeway to make workplace rules regarding grooming. On the other hand, it can be interpreted as a grooming matter with racial overtones, much like you will see grooming matters with gender overtones in the next chapter. 5. Bennie's Restaurant chain routinely hires blacks, but only assigns them to the lower-paying jobs as kitchen help, rather than as higher-paid servers, salad bar helpers or managers. Bennie's says it does not discriminate because it has many black employees. If suit is brought by the black employees, who will likely win? Most likely it will be the employees. With little else other than the facts, it appears that Bennie's is discriminating in job assignments or promotions. It is no defense that Bennie's hires blacks if it does not treat them equitably once hired. This is based upon Denny's Restaurant's troubles of the spring of 1993 which resulted in a settlement in excess of $48 million against Denny's. 6. A prominent black professor takes an unpaid leave of absence to protest the fact that his extremely prominent university has failed to ever hire any black females in tenure-track (regular, permanent) positions on the faculty. When he does not return after two years, he is terminated. He sues the university, alleging constructive discharge, in that the situation created by the school's policies made it an unlivable situation for him. Is this an effective argument? Explain. Probably not. In order for constructive discharge to be effective, the employee must allege that the actions of the employer toward or involving the employee were such that they made it so that the employee could not effectively work. Chances are, this situation of not hiring a female black tenure-track professor is not such a situation. This is based on Prof. Derrick Bell of Harvard University. 7. Ken recruits applicants for several prominent companies. Often when the companies call for Ken's services, they strongly hint that they do not wish to hire blacks, so Ken never places blacks with those companies. Is Ken liable for illegal discrimination? Yes. Title VII covers not only employers, but also others who place employees in employment such as employment agencies or other referral services. This is from a CBS television, "60 Minutes" segment and news reports. 8. Brie owns a 6-person beauty salon. One day a black customer comes in and wants a wash and set. Brie has a cold and does not wish to give it to the customer, so she tells her that Jerre will take care of her. Jerre starts protesting, in front of the other customers, that she is not going to do the customer's hair because "she doesn't do black hair" and "she (Jerre) is from New Hampshire." The customer, totally humiliated and crying, leaves the premises. Is Brie liable under Title VII? No. Title VII addresses discrimination in employment. This is discrimination against a customer. It would not be covered by Title VII. Based on actual case. 9. Jill, the owner of a construction business, says her construction crew will not work if she hires black crew members, so Jill does not do so. Is this a defenses to a Title VII action? No. Title VII does not permit customer or fellow employee preferences as a defense to discrimination. 10. When Cynthia tries out for a job as a cheerleader for a large Southern school, she is not chosen. Cynthia thinks it is because she is an Asian-American, even though she was born in Pittsburgh of third-generation Asian-Americans. If Cynthia proves this is true, does she have a cause of action under Title VII? No. Title VII redresses employment discrimination. Since the cheerleading is an extracurricular activity at school, it is not an employment relationship and Title VII does not apply.