RSS Feed!

Archives

Posts Tagged ‘race’

First Executive Order Issued by New Virginia Governor Requires “Equal Opportunity” in State Government (January 14, 2014)

Tuesday, January 14th, 2014

Virginia’s Governor McAuliffe issues his first Executive Order, and it focuses on requiring nondiscrimination in employment practices of the Commonwealth of Virginia on the bases of race, color, national origin, sex, sexual orientation, gender identity, age, religion, political affiliation, and disability. Moreover, Executive Order Number 1 prohibits discrimination against veterans, and permits “employment preferences for veterans” where appropriate. The Executive Order also promotes affirmative measures to “emphasize the recruitment of qualified minorities, women, disabled persons, and older Virginians to serve at all levels of state government.” Below is the text of the newly-issued Executive Order Number 1 (2014):

Importance of the Initiative

By virtue of the authority vested in me as Governor, I hereby declare that it is the firm and unwavering policy of the Commonwealth of Virginia to assure equal opportunity in all facets of state government. The foundational tenet of this Executive Order is premised upon a steadfast commitment to foster a culture of inclusion, diversity, and mutual respect for all Virginians.

This policy specifically prohibits discrimination on the basis of race, sex, color, national origin, religion, sexual orientation, gender identity, age, political affiliation, or against otherwise qualified persons with disabilities. The policy permits appropriate employment preferences for veterans and specifically prohibits discrimination against veterans.

State appointing authorities and other management principals are hereby directed to take affirmative measures, as determined by the Director of the Department of Human Resource Management, to emphasize the recruitment of qualified minorities, women, disabled persons, and older Virginians to serve at all levels of state government. This directive does not permit or require the lowering of bona fide job requirements, performance standards, or qualifications to give preference to any state employee or applicant for state employment.

Allegations of violations of this policy shall be brought to the attention of the Office of Equal Employment Services of the Department of Human Resource Management. No state appointing authority, other management principal, or supervisor shall take retaliatory actions against persons making such allegations.

Any state employee found in violation of this policy shall be subject to appropriate disciplinary action.

The Secretary of Administration is directed to review and update annually state procurement, employment, and other relevant policies to ensure compliance with the non-discrimination mandate contained herein, and shall report to the Governor his or her findings together with such recommendations as he or she deems appropriate. The Director of the Department of Human Resource Management shall assist in this review.

This Executive Order supersedes and rescinds Executive Order No. 6 (2010), Equal Opportunity, issued by Governor Robert F. McDonnell on February 5, 2010.

Effective Date of the Executive Order

This Executive Order shall become effective upon its signing and shall remain in full force and effect until amended or rescinded by further executive order.

Given under my hand and under the Seal of the Commonwealth of Virginia this 11th day of January 2014.

Terence R. McAuliffe, Governor

“Adverse Actions” in Federal Civil Rights Discrimination Complaints

Sunday, December 1st, 2013

In a prior paper titled, “The ‘Basis’ of a Discrimination Complaint: What It Is and Why It’s Important,” we discussed the fact that federal civil rights laws prohibit discrimination on a wide variety of “bases,” including race, color, national origin, religion, disability, age, gender, and so on. But, what types of conduct (also known as “adverse actions”) give rise to complaints of discrimination?

In the workplace.

Let’s start with the workplace. There are certain “adverse actions” that we typically see in discrimination complaints involving the workplace. These “adverse actions” include the following:

√ Termination;
√ Nonselection for a job;
√ Nonpromotion;
√ Refusal to provide accommodation or modification;
√ Harassment or hostile environment (see prior paper titled, “Harassment and Hostile Environment: Understanding the Basics”); or
√ Receipt of an adverse performance appraisal.

It is important to remember that an “adverse action,” standing alone, does not give rise to a discrimination complaint under federal civil rights laws. On the other hand, an “adverse action” taken on the basis of race, gender, disability, or the like, does allege a violation of federal civil rights laws. There are countless other types of “adverse actions” that also may occur in the workplace:

√ Relocation to a smaller and/or less desirable office location;
√ Refusal to provide training;
√ Denial of access to equipment and/or resources;
√ Denial of a security clearance;
√ Denial of paid and/or unpaid leave;
√ Exclusion from certain meetings; or
√ Imposition of dress and/or grooming requirements.

This list is not exhaustive; rather, it is designed to give you an idea of what constitutes an “adverse action.” Again, the “adverse action” must stem from a prohibited basis of discrimination to give rise to a complaint under federal civil rights laws.

For example, Michael, a person with a visual impairment, alleges that his company fired him after he asked for specialized voice-recognition software to assist him in performing certain job duties. Here, Michael has alleged an “adverse action” (termination) on a prohibited basis (disability).

Another example is where Cheri alleges she was denied a security clearance. Here, the “adverse action” is denial of a security clearance, but no civil rights violation has been alleged by Cheri. On the other hand, if Cheri alleges she was denied a security clearance because she is Hispanic, now she has asserted a violation of civil rights laws; that is, she alleges an “adverse action” (denial of a security clearance) on a prohibited basis (national origin).

If you are an EEO/AA/HR professional for your agency or organization, it is important that you train supervisors and managers regarding their obligations to employees under various federal civil rights laws. And, you will want to convey any additional requirements imposed by state and local human rights laws. Taking an “adverse action” against an employee does not, in and of itself, constitute illegal discrimination. But, a violation of civil rights laws does exist if the “adverse action” is premised on how an employee looks, what religious beliefs s/he holds (or doesn’t hold), the fact that s/he isn’t under 40 years of age, whether the employee comes to work in a wheelchair, or the like.

In federally-funded programs and activities.

Similarly, “adverse actions” in violation of federal civil rights laws can occur in federally-funded programs and activities. This is a less understood area of civil rights, yet the reach of federally-funded programs and activities is far and wide and includes public education, transportation, small business development, fair lending, fair housing, unemployment insurance, Medicare, environmental justice, workforce development, and many others. Here, federally-funded services, benefits, aid, and training must be delivered to members of the public in compliance with nondiscrimination and equal opportunity civil rights laws.

There are a variety of “adverse actions” that may occur in federally-funded programs and activities. Some “adverse actions” are similar to those found in workplace discrimination complaints such as harassment and hostile environment, or refusal to provide reasonable accommodation. For this component of the paper, we’ll illustrate some “adverse actions” unique to federally-funded programs and activities through use of examples related to the nondiscrimination requirements of Section 188 of the Workforce Investment Act of 1998. This civil rights law prohibits discrimination on the bases of race, color, national origin, religion, disability, gender, age, political affiliation or belief, and citizenship among others. For purposes of these examples, we’ll assume that you are the Equal Opportunity Officer for an American Job Network Center or a Job Corps Center and, in this capacity, you investigate complaints of discrimination.

√ Denial of aid, training, benefits, or services.

Steven tells you that he was denied enrollment in an on-the-job training program. At this point, Steven has not alleged a violation of any civil rights laws. However, if Steven says he was denied enrollment in an on-the-job training program because he is black, then he has alleged a violation of civil rights laws. Specifically, Steven asserts an “adverse action” (denial of enrollment in an on-the-job training program) on a prohibited basis (color).

√ Denying access to apply for aid, training, benefits, or services.

Maria alleges that she was laid off from her job. She tells you that, when she walked into the American Job Network Center, she was not able to apply for unemployment insurance (UI) benefits. So far, Maria has asserted an “adverse action” (denial of access to apply for UI benefits), but she hasn’t asserted a violation of any federal civil rights law. But, if Maria tells you that she is limited English proficient (LEP) and the packet of UI forms was available only in English, then she has alleged a violation of federal civil rights laws. Notably, Maria alleges and “adverse action” (denial of access to apply for UI benefits) on a prohibited based (national origin-LEP).

√ Providing one person different aid, training, benefits, or services than is provided others.

Here, we look at the conduct of an employment referral counselor at your American Job Network Center. Widget Company, a large manufacturing company in the area, has numerous job openings, and the counselor is referring people to fill these openings. Janet complains that she was referred to a lower paying position with Widget. Thus, Janet has alleged an “adverse action” (referral to a lower paying job), but she has not alleged a violation of civil rights laws. However, if Janet alleges that she was referred to a lower paying position with Widget, but men with the same credentials were referred to higher paying positions, then she has presented an alleged violation of civil rights laws. Namely, Janet asserts an “adverse action” (referral to a lower paying position) on a prohibited basis (gender).

√ Segregating a person, or treating the person separately, with regard to his or her receipt of aid, training, benefits, or services.

An example of segregation is where your Job Corps Center offers a computer science course, but requires that “persons with disabilities” attend the course at one classroom location, whereas all other students attend the course at another classroom location. Thus, there is an “adverse action” (segregation of classes) on a prohibited basis (disability). To the extent feasible, you must provide integrated services, aid, training, and benefits.

√ Restricting a person’s enjoyment of any advantage or privilege enjoyed by others receiving any aid, training, benefits, or services.

Hostile environment offers an example of restricting a person’s enjoyment of federally-funded programs and activities. Let’s assume that Borek is one of your Job Corps Center students, and has immigrated to the United States from Iraq. He files a complaint with you alleging that other students call him a “terrorist” in class and in the hallways, they post derogatory material about him on Facebook, and they repeatedly tell him he should “go back to Iraq where he came from.” Here, Borek alleges an “adverse action” (being subjected to a hostile environment) on a prohibited basis (national origin).

√ Treating one person differently from others in determining whether s/he satisfies any admission requirement or condition for aid, training, benefits, or services.

Here, let’s assume that Marsha informs you that her application for on-the-job training has been denied by Carol, who is a counselor at your American Job Network Center. By itself, this denial is an “adverse action,” but it is not a violation of civil rights laws. However, Marsha further tells you that she met the essential eligibility requirement for referral to on-the-job-training (she had her high school diploma), but Carol told Marsha she was concerned about referring her because Marsha had been pregnant five times within the past seven years. Now, a civil rights violation has been alleged. Notably, Marsha asserts an “adverse action” (denial of referral to on-the-job-training) on a prohibited basis (gender-prior pregnancies).

√ Denying or limiting a person with a disability the opportunity to participate in a program or activity.

Your American Job Network Center offers weekly orientations for any interested members of the public to learn about the services, aid, benefits, and training opportunities offered through the Center. Jake, who is in a wheelchair, tells you that he was unable to attend the orientation earlier this week because it was offered on the second floor of your building and your building does not have an elevator. Here, Jake alleged an “adverse action” (denial of access to the orientation) on a prohibited basis (disability).

√ Determining the site or location of a facility that has the purpose or effect of discriminating on a prohibited basis.

State and local officials are in the process of determining where to establish a American Job Network Center in a particular city, and they decide to place the facility near an affluent neighborhood in one suburb of the city. However, a majority of the city’s population is located on the other, more densely-populated side of town. And, a majority of this population is comprised of Hispanics and African-Americans. The minorities in this city generally use public transportation, which is widely available on the densely-populated side of town. The Center’s location in the affluent neighborhood is, however, six blocks from the nearest bus stop. Thus, by locating the Center in the affluent neighborhood away from public transportation, the Center is not readily accessible by a majority of the city’s population, most of whom are minorities. Here, there are allegations of an “adverse action” (location of the facility in a less-populated neighborhood that is not readily accessible by public transportation) on prohibited bases (national origin and race).

In this paper, we’ve discussed only a few types of “adverse actions” that may occur in federally-funded programs and activities. Again, a mere allegation by an individual that s/he suffered an “adverse action” is not sufficient to support a discrimination complaint. But, allegations by an individual that s/he has suffered an “adverse action” on a prohibited basis do support an allegation of civil rights violations.

As the Equal Opportunity professional for your agency or organization, you should make sure leadership and staff understand both the federal nondiscrimination and equal opportunity laws applicable to the programs and activities you operate as well as the types of “adverse actions” that may lead to a violation of those laws. Moreover, you are obliged to notify beneficiaries and potential beneficiaries (members of your public) of their rights under these laws. It is important to have policies and procedures in place ensuring nondiscriminatory delivery of aid, training, benefits, and services to your public, and to conduct periodic training so each person in your organization understands his or her role in delivering programs and activities to the public without imposing discriminatory criteria. Keep in mind that these nondiscrimination laws cover all aspects of your operations, including outreach and recruitment, registration, counseling and guidance, testing, selection, placement, appointment, referral, training, and promotion and retention.

About Seena Foster.

Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations. To that end, she offers one-hour on-demand webcasts, full-day and half-day in-person training sessions, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally funded programs and activities. Her book, Civil Rights Investigations under the Workforce Investment Act and Other Title VI Related Laws: From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource. Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors.

In 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews. Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by the CRC Director, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act.

In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.” And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the WIA Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.

Title VI Consulting, LLP is an affiliate member of the National Association of State Workforce Agencies (NASWA). Ms. Foster is a graduate of the George Washington University Law School. You may contact her through www.titleviconsulting.com.

U.S. Commission on Civil Rights: Discipline and Disparate Impact at Educational Institutions

Friday, October 18th, 2013

The following is the Letter of Transmittal and Executive Summary of a briefing on school discipline and disparate impact before the U.S. Commission on Civil Rights. The full text of the briefing may be found at http://www.usccr.gov/pubs/School_Disciplineand_Disparate_Impact.pdf.

Although the briefing focuses on “schools and school districts,” it offers valuable insights for all educational institutions, including colleges and universities.

School Discipline and Disparate Impact Briefing Before The United States Commission on Civil Rights
Held in Washington, DC
Briefing Report

Letter of Transmittal
The President
The President of the Senate
The Speaker of the House

Sirs:

The United States Commission on Civil Rights (“Commission”) is pleased to transmit this report, School Discipline and Disparate Impact. The report is drawn from a briefing that the Commission held on February 11, 2011 that examined the effect that the U.S. Department of Education’s Fall 2010 Disparate Impact initiative has had on schools and school districts across the country. This federal initiative was implemented to look at differences in discipline outcomes between students of color and other similarly-situated students.

The initiative’s aim is to identify whether the application of exclusionary discipline policies has had a disparate impact on students of color. During the briefing the panelists, teachers and administrators from racially diverse public school districts described how their particular schools have responded to this initiative. The Commission inquired as to whether the schools have changed their policies and practices and what those changes have been. In addition, the Commission inquired into whether school districts maintain comprehensive data that allows them to track the effectiveness of their discipline policies; whether teachers are appropriately trained to implement these policies; and what other methods are being used by districts to evaluate the effectiveness of their policies. Finally, the U.S. Department of Education provided background information on its disparate impact initiative and how the disparate impact theory is being implemented in its enforcement work.

The briefing identified a common theme among most of the teachers. This is that disciplinary problems can be greatly reduced through individualized instruction based on the student’s capabilities, cultural sensitivity or competency, parental involvement and support, and effective school leadership. School administrators indicated that disciplinary problems could be reduced through consistent application of a transparent and uniform school-wide disciplinary policy. Many of the school administrators also indicated that they had successfully reduced discipline disparities and overall expulsions through the adoption of nationally-tested behavior management programs.

This report was unanimously approved on October 21, 2011 by Chairman Martin R. Castro, Vice Chair Abigail Thernstrom, and Commissioners Roberta Achtenberg, Todd Gaziano, Gail Heriot, Peter Kirsanow, David Kladney, and Michael Yaki.

For the Commission,
Martin R. Castro
Chairman

Executive Summary

The Commission held a briefing entitled, “School Discipline and Disparate Impact” on February 11, 2011 to examine the effect of the U.S. Department of Education’s disparate impact initiative announced in the fall of 2010 for schools and school districts across the country. The Commission asked teachers and administrators from racially diverse public school districts how they have responded to the new initiative; specifically, whether their teachers and administrators have changed their policies and practices as a result, and what those changes were. The Commission was interested also in whether the districts kept statistics to track the effectiveness of policies; how they train their teachers in implementing discipline policies; and what other means the districts used to evaluate whether their policies worked.

The Commission asked the U.S. Department of Education (ED or Department) to describe its disparate impact initiative and supply case documents indicating the manner in which the Department implemented disparate impact theory in its enforcement work. The Department’s civil rights enforcement unit, the Office for Civil Rights (OCR), provided documents relating only to closed cases, which showed investigations that proceeded to resolution based initially on a disparate impact theory. The Department’s policy as stated during the briefing is that statistically disparate results create a presumption of discrimination that must be rebutted by the school or district with evidence that the school or district has a legitimate educational justification and that there are no equally effective alternative policies that would achieve the school’s educational goals. The Department indicated that it would continue to use disparate impact theory in its investigations, including those currently open, in addition to disparate treatment theory.

Teachers appearing before the Commission were Mr. Allen Zollman, Ms. Andrea Smith, Ms.Jamie Frank, Mrs. Louise Seng, and Mr. Patrick Welsh. Administrators appearing before the Commission were Ms. Suzanne Maxey, Principal at TC Williams High School in Alexandria City, Virginia; Dr. Osvaldo Piedra, Assistant Principal, East Lake High School, Pinellas County, Florida; Mr. Joseph Oliveri, Retired Director of Alternative Schools for the Austin Independent School District, Texas; Mr. Edward Gonzalez, Associate Superintendent, Department of Prevention and Intervention, Fresno Unified School District, Fresno County, California; Dr. Hardy Murphy, Superintendent, Evanston/Skokie District 65, Cook County, Illinois; Dr. Hertica Martin, Executive Director for Elementary and Secondary Education, Rochester Public Schools, Olmstead County, Minnesota; and Dr. Douglas Wright, Superintendent, San Juan School District, Blanding, Utah. Mr. Ricardo Soto, Principal Deputy Assistant Secretary for Civil Rights, Office for Civil Rights, U.S. Department of Education, appeared for the Department.

Points of agreement among most of the teachers were that disciplinary problems were greatly reduced among all students by attention to appropriate levels of difficulty in instructional materials, sensitivity to individual students and their backgrounds, parental involvement and support, and effective leadership by a school principal. Most, but not all of the teachers reported no effort by school administrators to interfere with classroom discipline, but some reported onerous procedural and paperwork burdens before any disruptive student could be removed from class.

Points of agreement among the school administrators were the importance of the following: telling students what the rules are; why the school has those rules, what the consequences are for violating those rules, and being consistent in applying the rules. Also effective in their view was maintaining an approach that sought ways to change the school to better meet the needs of the students, rather than inflexibly following a pre-set view or imposing zero-tolerance rules that students knew produced unfair results; training teachers in understanding different cultures and personalities; devising special programs for behaviorally high-risk students; instituting parent engagement and education programs; and/or adopting one of several nationally-tested behavior management programs that had reduced disparities and overall expulsions in other districts.

Two of the speakers (Dr. Wright, San Juan, Utah and Dr. Martin, Rochester, Minnesota) were administrators from districts currently under investigation by the U.S. Department of Education’s Office for Civil Rights for possible violations under the new discipline initiative. Dr. Wright’s district uses nationally-tested behavioral support programs mentioned by other speakers, expanded the role for guidance counselors, and instituted a student support system; Dr. Martin’s district uses some of the same techniques and nationally-tested programs discussed in the briefing. Mr. Soto of the U.S. Department of Education’s Office for Civil Rights (OCR) provided an overview the office’s work and mission, which is to ensure equal access to education through vigorous enforcement of civil rights. Mr. Soto stated that OCR’s disparate impact initiative stemmed from data showing a sharp increase in the numbers of students nationwide who were suspended or expelled, which OCR views as an indication of possible violations of Title VI of the Civil Rights Act of 1964 and addresses using both disparate treatment and disparate impact theories.

“Zero Tolerance” Policies: No Exemptions

Thursday, November 1st, 2012

Increasingly, government agencies, organizations, and companies are instituting “zero tolerance” policies of one sort or another in the workplace. In some instances, the policies stem from multiple discrimination complaints, federal or state investigations, lawsuits, or constant grievances. Sexual harassment and overt prejudices in the workplace affect not only those who are directly involved, but others around them. It is logical that, if racial or ethnic slurs, or occurrences of sexual harassment, are rampant among employees, then workplace productivity suffers—more time is spent diffusing workplace tensions than working.

Hence, the advent of “zero tolerance” policies in the workplace.

“Zero tolerance” policies are effective only when enforced across the board; from the upper echelons of management to the myriad of support staff that keep the organization running on a day-to-day basis. An Eleventh Circuit Court of Appeals decision in Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir. 2011) illustrates this point.

At issue in this case was the “zero tolerance” policy banning discriminatory behavior in the workplace, including e-mail transmission of racial slurs. The genesis of Lockheed-Martin’s “zero tolerance” policy was a deadly shooting that occurred at one of its plants in 2003 by a self-declared “white supremacist” employee. This employee killed five people and wounded several others in a rampage that ended with the employee’s suicide.

Ultimately, the EEOC concluded that Lockheed-Martin was responsible for the incident because its Human Resources Department knew of racial hostility at the plant, but did nothing to address it. Negative press coverage of the incident followed and a “zero tolerance” policy was instituted.

Under the policy, employees of Lockheed-Martin were required to report violations to supervisors who, in turn, would report violations to the Human Resources Department. An investigation would ensue and, if a person was found in violation of the “zero tolerance” policy, punishment would follow, which may include termination.

Under the facts of Smith, a white supervisor at one of Lockheed-Martin’s plants (Mitten) sent a racial joke, “Top Ten Reasons Why There Are No Black NASCAR Drivers”, via e-mail to his supervisor. The court observed that the e-mail “featured a top-ten list of derogatory stereotypes, all of which portrayed black people as criminals, pimps, and gang members.” A non-supervisory employee brought the e-mail communication to the attention of the Human Resources Department, which conducted an investigation. The white supervisor who transmitted the e-mail to his supervisor was found in violation of the “zero tolerance” policy and was terminated from his employment.

In addition, other white employees who had received and/or transmitted the e-mail were terminated. However, one African-American employee who received the e-mail, was reprimanded.

Later in the year, another e-mail was circulated. This time, the e-mail contained slurs of white employees and was titled, “How to Dance Like a White Guy.” As noted by the court:

Mitten later learned that, within two months of his termination, HR discovered that two black non-supervisors at the Marietta plant had also violated the zero tolerance policy by transmitting racist emails targeting whites. These black employees, however, merely received temporary suspensions as discipline for their conduct.

After learning of this more-lenient treatment for black employees, Mitten concluded that he had been fired—in lieu of a temporary suspension—because he is white.

The Eleventh Circuit found this problematic. Initially, it cited to the McDonnell Douglas framework established by the United States Supreme Court to determine whether Mitten had made “out a case sufficient to withstand a motion for summary judgment”, also known as a “prima facie” case of discrimination. The court concluded that, in this case, the prima facie case was made:

When, as here, the plaintiff claims that his employer discharged him on account of his race, he must establish four elements: (1) that he is a member of a protected class (here, Caucasian); (2) that he was qualified for the position he held; (3) that he was discharged from that position; and (4) that in terminating his employment, his employer treated him less favorably than a similarly situated individual outside of his protected class (here, an African-American). E.g., 16 Maynard v. Bd. Of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003) (citing McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824). If the plaintiff makes this showing, he raises a presumption that his race motivated his employer to treat him unfavorably. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 1094, 67 L. Ed. 2d 207 (1981).

Lockheed-Martin asserted that, because Mitten held a supervisory position with the company, he was held to a higher standard in enforcement of the “zero tolerance” policy on racial slurs. Under the circumstances of the case, the court observed:

Lockheed asserts that Mitten was fired because he was employed as a supervisor, not because he is white; however, record evidence permits a jury to infer reasonably that this justification merely is a pretext for a discriminatory motive. See, e.g., Silverman, 637 F.3d at 734 (stating that circumstantial evidence that the employer’s offered justification for an adverse employment action is pretextual could permit a reasonable jury to infer the employer’s discriminatory intent). The evidence shows that Tom Heiserman (vice president of Human Resources), in the summer of 2005, discriminatorily fired white employees employed in non-supervisory positions who, like Mitten, distributed racially insensitive emails. Although these other fired white employees were not supervisors, a jury reasonably could conclude that Heiserman, having discriminatorily fired white employees for similar conduct around the time of Mitten’s discharge, also discriminated against Mitten. See Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008) (finding evidence of other acts Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008) (finding evidence of other acts of discrimination by the same decisionmaker against other employees in the plaintiff’s protected group to be admissible under Fed. R. Evid. 404(b) because that evidence is probative of the decisionmaker’s discriminatory intent).

In the end, the court concluded that it was improper for the Human Resources Department to consider a perpetrator’s race in doling out disciplinary actions. The court stated:

The foregoing circumstantial facts preclude summary judgment (in favor of Lockheed-Martin) in this case as a jury reasonably could infer that Lockheed only fired Mitten because he is white. The evidence yields this inference because it: (1) suggests that Lockheed’s justification for firing Mitten is a pretext for racial animus; (2) shows that Lockheed had a substantial incentive to discipline white employees more harshly than black employees . . .; and (3) indicates clearly that Lockheed consciously injected race considerations into its discipline decision making without an adequate explanation for doing so.

The court noted that lesser disciplinary actions levied on African-American employees as compared to their white counterparts for similar conduct under the “zero tolerance” policy indicated racial motivation in the decision-making.

For a copy of this opinion, go to www.ca11.uscourts.gov.

About the author.

Seena Foster, award winning author and Partner of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations. To that end, she offers one hour Webinars, full-day and half-day in-person training sessions, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally funded programs and activities. Her book, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws: From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource. Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors. You may contact her through www.titleviconsulting.com.

Compliance With Federal Civil Rights Laws

Sunday, April 1st, 2012

Attorney and award-winning author, Seena Foster, has developed a series of free informational papers available through this blog, which are designed to help Equal Opportunity Professionals comply with the nondiscrimination and equal opportunity mandates of federal civil rights laws. For more information about Ms. Foster and the services she offers, you may visit www.titleviconsulting.com. The following is a list of articles to date:

September 2011:

Harassment and Hostile Environment: Understanding the Basics
The WIA Equal Opportunity Officer: Who Are You, To What Are You Entitled, and What Are You (supposed) To Do?
Library Essentials for the Equal Opportunity Officer
The Importance of “The Script”
“Unemployed Need Not Apply”: The Road to Nowhere for Our Economy

October 2011:

“EO is The Law” and “EEO is The Law”: Understanding Some of The Distinctions
“Adverse Actions” in Federal Civil Rights Discrimination Complaints
Press Release from the U.S. Department of Labor–New Facebook Site for Jobs
Collecting and Storing Medical Information: Federal Civil Rights Laws and HIPAA
Religious Accommodation in Federally-Funded Programs and Activities: An Overview
The “Basis” of a Discrimination Complaint: What It Is and Why It’s Important

November 2011:

Limited English Proficiency (LEP) Persons: Some Basics in Federally Funded Programs and Activities

December 2011

The Road to Nondiscrimination: Focusing on The Fundamentals

January 2012

Immigration-Related Unfair Labor Practices: Guidance for Employers

February 2012

The Meaning of “Disability”

March 2012

“Auxiliary Aids and Services Available on Request to Individuals With Disabilities”

April 2012

Your Discrimination Complaint Log

Coming in May 2012

Investigating Pregnancy Related Discrimination Complaints

Department of Justice and Department of Education Joint Guidance on the Voluntary Use of Race

Wednesday, December 7th, 2011

Assistant Attorney General, Thomas E. Perez, and Assistant Secretary for Civil Rights in the Department of Education, Russlynn Ali, have posted joint guidance on the voluntary use of race to achieve diversity or avoid racial isolation in schools. The guidance is intended to help schools, colleges, and universities lawfully achieve compelling interests in diversity, and for K-12 schools, the additional compelling interest in avoiding racial isolation. The guidance is presented in two documents, one for elementary and secondary schools and the other for postsecondary institutions.

To access the joint guidance letter as well as the separate attachments for K-12 educational institutions and for colleges and universities, go to www.justice.gov/crt/about/edu/guidance

Guidance letter

Elementary and secondary school guidance

Postsecondary education guidance