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Posts Tagged ‘race discrimination’

On-Demand Civil Rights Webcasts Available: Delivering Public-Facing Programs and Activities in Compliance with Federal Law

Thursday, June 28th, 2018

Delivered by Civil Rights Expert and Author Seena Foster

In 2017, State and local government officials are applauding the webcasts, stating they are “outstanding,” “very informative,” and “extremely useful.” Each webcast is only $29.00.

Available Selection

Compliance with Title VI of the Civil Rights Act: An Overview

Compliance with the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act: A Comprehensive Overview

Discrimination Complaint Investigations under the Workforce Innovation and Opportunity Act:  Proper Process and Technique

State and local government officials responsible for the delivery of, or monitoring the delivery of, services, aid, training, or benefits to the public must comply with Federal civil rights laws. These laws also apply to service providers, on-the-job trainers, contractors, and partners that assist in delivering public-facing programs and activities. Our webcasts provide practical training for new and experienced professionals working in the area of equal opportunity.

Because the webcasts are on-demand and certificate-based, they provide a convenient and inexpensive way to acquire and document training of staff, contractors, service providers, and partners.

How to register:
To register, simply click on the “Webcast Registration” icon on the left side of this blog. Or, go to

Cost-effective.  Only $29.00 each. No travel costs.  No lost time from work. These webcasts are absolutely the best value for your dollar!

Content-rich.  Each webcast is packed with useful information, guidance, and helpful tips. Each participant receives a copy of the detailed PowerPoint presentation for the webcast, which may be used as a checklist going forward.

Certificate-based.  Within three to five weeks, each participant who registers and attends the webcast will receive a personalized, signed “Certificate of Completion” to document the training.  

Title: Compliance with Title VI of the Civil Rights Act: An Overview
This popular webcast provides an informative overview of how to comply with the nondiscrimination mandates of Title VI of the Civil Rights Act of 1964. Title VI applies to the administration, oversight, and delivery process of all state and local programs and activities that are federally-assisted. In this webcast, we’ll focus on the scope and meaning of Title VI of the Civil Rights Act, and we will touch on a variety of compliance-related issues, including environmental justice, serving limited English proficient populations, contracting and procurement, discrimination complaints, harassment and hostile environment, training, monitoring, and data collection. Participants will understand the meaning of race, color, and national origin-based discrimination through Ms. Foster’s use of a variety of easy-to-understand examples. And, participants will learn about surprising federal enforcement policies to include certain types of religious-based discrimination as prohibited under Title VI. A detailed PowerPoint is available for download to viewers of this webcast.

Title: Compliance with the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act: A Comprehensive Overview
This webcast provides a wealth of information, guidance, and tips to help you ensure compliance with the nondiscrimination and equal opportunity provisions of Section 188 of the Workforce Innovation and Opportunity Act (WIOA), and related Federal civil rights laws that apply to the administration, oversight, and delivery process for WIOA Title I-financially assisted programs and activities. In this webcast, we’ll cover a broad range of compliance issues, including taglines, assurances, Equal Opportunity officers (their selection and duties, and the recipients’ obligations in support of EO officers), serving persons with disabilities, serving LEP populations, differences between program complaints and discrimination complaints, harassment and hostile environment, and data collection, including requirements for the discrimination complaint log and storage of medical information. A detailed PowerPoint, updated after promulgation of the final version of the WIOA regulations at 29 C.F.R. Part 38, is available for download to viewers of the webcast.

Title: Discrimination Complaint Investigations under the Workforce Investment Act:  Proper Process and Technique
This webcast covers the discrimination complaint investigation process from start to finish, including determining jurisdiction, developing a complaint investigation plan, framing the issue of an investigation, developing interrogatories, preparing a letter of acceptance, gathering and analyzing information, interviewing the parties and witnesses, and writing the notice of final action.  Each participant of this webcast will receive a set of templates that they may customize and use for their investigations, including a jurisdiction checklist, sample complaint investigation plans, sample notices rejecting a complaint, a sample letter of acceptance, and a sample notice of final action. Complaint investigation templates and a detailed PowerPoint are available for download to viewers of the webcast. Complaint processing templates and a detailed PowerPoint are available for download to viewers of the webcast.

About Seena Foster
Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting 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, discrimination complaint investigation assistance, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. Federal non-discrimination laws are complex, and they affect 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.

Her background includes 24 years as Senior Legal Advisor to the U.S. Labor Department’s Office of Administrative Law Judges, where she drafted decisions and orders and developed resources and aids promoting consistency and efficiency in several national adjudication programs. In 2012, Ms. Foster received the U.S. Secretary of Labor’s Exceptional Achievement Award “for outstanding leadership and legal guidance in helping the Office of Administrative Law Judges address the major changes in law” stemming from enactment of the Patient Protection and Affordable Care Act.

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 CRC Director Annabelle Lockhart, 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 Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.

Ms. Foster is a graduate of the George Washington University Law School, and she carries certification in federal workplace mediation from the Northern Virginia Mediation Service as well as mediation certification from the Defense Equal Opportunity Management Institute (DEOMI). Ms. Foster also is a member of the Human Rights and Discrimination Law committees of the International Bar Association. You may contact her at

How Do E-Verify Mandates Affect Unauthorized Immigrant Workers? (March 2014)

Tuesday, March 4th, 2014

This working paper by Pia M. Orrenius and Madeline Zavodny, which was released by the Federal Reserve Bank of Dallas this month at, contains analysis of data from the U.S. Census Bureau’s Current Population Survey. The abstract to the paper provides the following:

A number of states have adopted laws that require employers to use the federal government’s E-Verify program to check workers’ eligibility to work legally in the United States. Using data from the Current Population Survey, this study examines whether such laws affect labor market outcomes among Mexican immigrants who are likely to be unauthorized. We find evidence that E-Verify mandates reduce average hourly earnings among likely unauthorized male Mexican immigrants while increasing labor force participation and employment among likely unauthorized female Mexican immigrants. In contrast, the mandates appear to lead to better labor market outcomes among workers likely to compete with unauthorized immigrants. Employment and earnings rise among male Mexican immigrants who are naturalized citizens in states that adopt E-Verify mandates, and earnings rise among U.S.-born Hispanic men.

And, in the conclusion, the authors state the following:

A growing number of states require employers to verify workers’ employment eligibility. Using data from 2002-2012, we find that universal E-Verify mandates appear to reduce hourly earnings by about 8 percent among male Mexican immigrants who are likely to be unauthorized, and this effect is concentrated among long-term U.S. residents. We do not find evidence that E-Verify mandates reduce employment among likely unauthorized Mexican immigrants. On the contrary, women’s employment increases in states that adopt E-Verify mandates. Lower earnings among men may induce some women to enter the labor market, while men may move away from states that adopt E-Verify mandates, cushioning the disemployment impact. Taken as a whole, the results indicate that E-Verify mandates to date are largely successful in achieving the goal of worsening labor market outcomes among unauthorized immigrants.

Another goal of E-Verify mandates is to improve labor market outcomes for U.S. natives who may compete with unauthorized immigrants. We find some evidence that the laws achieve this objective, although positive effects are more prominent for Mexican immigrants who are naturalized U.S. citizens than for U.S.-born Hispanics. The adoption of E-Verify mandates does not appear to affect labor market outcomes among non-Hispanic whites either positively or negatively.

There are several caveats to our results. Migration to other states may reduce the impact of E-Verify mandates. In addition, there are a number of shortcomings with regard to what we know about employment eligibility verification mandates. We are unable to identify mandates that are strictly enforced from those that are merely “on the books.” We do not know the extent of federal audits and other enforcement activities, which may be correlated with state mandates. We also are unable to examine the extent of E-Verify use in states that have not adopted mandates. Corporations with nationwide operations that implement E-Verify in one state may decide to extend that corporate policy to other states.

Despite these limitations, this study offers new evidence on the effects of E-Verify mandates. In particular, we fail to find evidence of significant negative employment effects among likely unauthorized Mexican immigrants, although we do find evidence of sizable negative earnings effects among men. If more states implement employment verification, unauthorized workers will likely have even lower wages and may not be able to avoid disemployment effects by moving to a state that does not have a mandate in place. This suggests E-Verify can be a powerful interior enforcement tool but could also lead to higher poverty and more social assistance needs among the unauthorized immigrant population. E-Verify mandates might be used more effectively and with fewer unintended consequences as part of a comprehensive immigration reform where they would be a deterrent to future unauthorized immigration.

U. S. Commission on Civil Rights: A Briefing Paper on Assessing the Impact of Criminal Background Checks and the Equal Employment Opportunity Commission’s Conviction Records Policy (December 2013)

Friday, February 28th, 2014

The following are excerpts of the “Summary” and “Introduction and Background” sections of a briefing paper from the U.S. Commission on Civil Rights. For the complete text of the briefing paper, go to


On December 7, 2012 the United States Commission on Civil Rights held a briefing to examine the disparate impact provisions of the Equal Employment Opportunity Commission’s (EEOC) April 2012 guidance concerning the use of criminal background histories (2012 Guidance or “new guidance”). The Commission wished to learn about the effects of the EEOC’s revised policy on employers and on black and Hispanic applicants with or without a criminal record.

The briefing’s seventeen speakers included a high-ranking EEOC official, scholars, attorneys, social scientists, personnel executives, a former offender now policy director of an advocacy and job placement service, a family member of a victim slain by an unscreened exconvict sent to the victim’s home as a contractor six months earlier, ex-felon advocacy groups, business associations representing home care, small business and retail, and a security company currently under investigation by the EEOC.

The speakers gave views on the effects of the 2012 Guidance, its legal complexities, the sufficiency of its evidentiary basis, and on whether the 2012 Guidance would result in a negative disparate impact on the very groups the agency intends to protect. Former-offender advocacy groups welcomed the 2012 Guidance for its virtual prohibition on blanket exclusionary policies and its strongly suggested consideration of applicants and employees with criminal records of many kinds on a narrowly drawn or case-by-case basis. These records included arrest records only, criminal citations, misdemeanor convictions, expungements, and felony convictions, among others. Speakers representing employers discussed whether the majority of employers, who for legal, statutory mandate, business and/or safety reasons must exclude applicants with particular criminal convictions, might as a result reduce hiring overall, increase automation, or move some jobs overseas. Some thought that such reduction in hiring of entry-level workers would likely have the unfortunate effect of disproportionately lowering job opportunities and reducing employment among blacks and Hispanics.


Disparate impact theory posits that any use of a selection method that is facially nondiscriminatory may still be held discriminatory if it affects proportionally more of one protected group than of another, and the selecting entity, in this case an employer, cannot show that the selection criteria are job-related and consistent with business necessity.

Disparate impact theory is invoked by plaintiffs in private discrimination suits and by various
enforcement agencies. In addition to the EEOC, examples of such enforcement agencies are the U.S. Department of Justice’s Civil Rights Division, the U.S. Department of Housing and Urban Development, the Consumer Financial Protection Bureau, and the U.S. Department of Education, among others.

The EEOC’s mission is enforcement of anti-discrimination and other federal equal employment opportunity laws as authorized under Title VII of the Civil Rights Act of 1964 (the Act). Since the statute does not authorize the agency to issue regulations on this subject, the agency makes known its interpretation of the statute by issuing guidance and policy statements. Employers excluded by statute from its jurisdiction are those with fewer than 15 employees and American Indian tribes. The U.S. Department of Justice litigates Title VII against States and municipalities.

The Civil Rights Act as passed in 1964 did not address disparate impact, although the Supreme Court accepted disparate impact theory with regard to intelligence tests and high school graduation requirements in the 1971 case Griggs v. Duke Power Company. Twenty-five years after the Act’s passage, Congress amended the Act’s Title VII to include disparate impact discrimination as a statutory basis for suits against employers as part of the Civil Rights Act of 19916 after a series of Supreme Court decisions that weakened the reach of disparate impact theory. The amended law did not address criminal histories, and the EEOC’s 2012 Guidance acknowledges that “having a criminal record is not listed as a protected basis in Title VII.” Since at least 1972,9 however, the EEOC has asserted that disparate impact theory drawn from the Griggs decision forbids the blanket exclusion by an employer of all applicants with criminal histories. The EEOC does not prohibit or restrict employers from asking for or obtaining background histories, although eliminating the question from the face of an application is identified as a “best practice” and some members of the public who submitted comments appear to believe that it is still considering the elimination of the question. Many of the public comments sent to the EEOC concerning its new guidance mistakenly objected to the perceived restriction or prohibition against obtaining background checks.

To pursue a claim under Title VII in federal or state court, an aggrieved applicant or employee must first file a charge with EEOC or with a state or local fair employment practices agency authorized to accept charges on the EEOC’s behalf. If the EEOC investigates and does not find reasonable cause to believe that discrimination occurred, it will automatically send the charging party a “Notice of Right to Sue,” after which the charging party will have 90 days to file a lawsuit.

If EEOC investigates and finds reasonable cause to believe that discrimination occurred, the agency will attempt to resolve the charge informally through conciliation. If the attempt to conciliate the charge is unsuccessful, the EEOC will decide whether to file suit. If EEOC decides not to file suit, it will send the charging party a Notice of Right to Sue, and the same 90-day suit-filing period will apply. Once a Notice of Right to Sue has been issued, the agency usually takes no further action on the charge. If EEOC does file suit, the charging party may intervene in that lawsuit but generally may not sue separately. In any lawsuit the EEOC’s policies and guidance statements remain important but not necessarily dispositive considerations for a court in deciding the outcome.

The EEOC’s 2012 Guidance is the most recent policy statement conscribing employee selection. It supersedes all earlier criminal history policies. Because the 2012 Guidance is so recent, Commission briefing speakers based their comments on its expected effects, in addition to the EEOC’s enforcement policy and actions under prior guidances issued in 1987 and 1990.

Still in force are the 1978 Uniform Guidelines on Employee Selection Procedures (1978 Selection Guidelines) on allowable methods of selection. The 1978 Selection Guidelines, issued 35 years ago and not updated since, are in use by various federal agencies. Critics of the 1978 Selection Guidelines allege that accepted standards incorporating advances in validity generalization are not available to employers under these guidelines. Validity generalization would allow employers to develop employee qualification standards that would be applicable to a class of jobs, not just one job. Although the 2012 Guidance acknowledges as a legitimate selection concern the physical or other security risks to customers or other employees inherent in hiring any employee, it leaves employers exposed to the discretionary judgment of the EEOC as to individual hiring decisions.

Among those policies apparently superseded is the 1987 policy distinguishing between crime-specific and non-crime-specific data to control employers’ use of statistical data in excluding former offenders (1987 Statistics Policy). This policy allowed employers where the policy was crime-specific to present data showing that their practices would not adversely affect blacks and Hispanics in the employer’s actual pool as to that particular crime; the new guidance also allows employers to make this showing. Also superseded is the 1990 policy guidance restricting employers’ use of arrest records (1990 Arrest Records Policy); the policy limiting but not eliminating use of arrest records is now included in the new guidance.

The Title VII statute does not distinguish between intentional and inadvertent actions, meaning that an employer may make good-faith efforts to adhere to the guidance and still be in violation of the law. The EEOC has the authority to bring a systemic investigation against several employers alleging a pattern or practice of discrimination and add additional affected employees and/or bases such as national origin.

Some years ago, the EEOC began an initiative called “E-RACE” that adds greater scrutiny to employer practices such as making hiring selections based on “names, arrest and conviction records, employment and personality tests, and credit scores.” The 2012 Guidance does not discuss the relation of E-RACE to the Guidance.

The 2012 Guidance states categorically that any employer policy disfavoring persons with criminal records disproportionally affects racial and ethnic minorities, particularly black or Hispanic with criminal records nationwide. It bases this declaration on data from the U.S. Department of Justice’s Bureau of Justice Statistics showing nationwide conviction rates of blacks and Hispanics disproportionately higher than their representation in the general population of the United States. The EEOC cautions employers against drawing conclusions driven by racial or ethnic animosity, as well as decisions infected by stereotyped thinking which might lead an employer to reject a black or Hispanic applicant based on a higher than average likelihood of a criminal history.

Based on its statistical information, the EEOC regards as likely disparate impact any exclusion of a black or Hispanic job applicant or employee with a criminal record. This would hold true regardless of the type of crime, the type of job, the location, or the nature of the employer’s business, unless the employer uses what the EEOC considers a narrowly drawn or “targeted” screen that does not exclude all persons with criminal records, or enquires into the details of each applicant’s history to determine suitability and establishes a rationale that is consistent with business necessity. The EEOC defines “targeted exclusions” as “an employer policy or practice of excluding individuals from particular positions for specified criminal conduct with a defined time period, as guided by the Green factors.”

The “Green” factors were set out in 1977 in a three-judge panel decision of the Eighth Circuit Court of Appeals, Green v. Missouri Pacific Railroad. The Green factors are 1) the nature and gravity of the offense; 2) the time passed since the offense and/or completion of the sentence; and 3) the nature of the job held or sought.

The EEOC, as is true of many other federal agencies, has broad investigative powers. The EEOC’s 2012 Guidance states that the agency may investigate a charge in light of its national data on disparate impact and consider contrary data provided by employers. In the context of litigation, however, existing disparate impact case law requires a plaintiff to bear the initial burden of proof.

The EEOC held two public meetings prior to the publication of the 2012 Guidance. At the public meeting in November 2008 the EEOC invited eight speakers–six in favor of its views and two opposed. In July 2011, the EEOC held another public meeting to which ten speakers were invited, eight generally supporting the EEOC’s stated views,37 and two possibly somewhat equivocal.38 The law does not require, and the EEOC did not provide, a draft of the new guidance to meeting speakers or the public on either occasion, nor did it provide a draft at any time before the guidance was issued. The EEOC received approximately 300 written public comments for the 2011 meeting, many from ex-offenders and advocacy organizations supporting limits on using criminal histories, many from individuals, groups and businesses opposing restrictions on use or the elimination of background checks. The EEOC did not respond publicly to comments or speaker testimony but says it considered them in its deliberations, and in fact, the new guidance does not forbid or restrict employers from obtaining background checks.

The 2012 Guidance is couched largely in a series of factual examples followed by “best practices,” rather than commands. In the briefing, EEOC speaker Carol Miaskoff stated categorically that it does not require individualized consideration, although the 2012 Guidance could reasonably be read as strongly recommending this approach. The text states that Title VII “does not necessarily require individualized assessment in all circumstances …the use of a screen that does not include individualized assessment is more likely to violate Title VII … [and] the use of individualized assessments can help employers avoid Title VII liability…” Employer counsel at the briefing clearly viewed this warning to mean that any use of criminal history for a protected class member without individual assessment was presumptively illegal and in fact they would be highly vulnerable to suit, an impression contrary to what the EEOC says it intended.

Once a claim is brought against an employer, the 2012 Guidance provides that the employer may defend against the charge by showing that its policy does not cause a disparate impact, using local conviction rates for blacks or Hispanics and/or its own job application data. The Guidance allows the EEOC to reject the showing, however, if it concludes that some applicants who might be in the applicant pool have been discouraged from applying because of the employer’s reputation in the community. The Guidance does not indicate the method of assessment, which potentially complicates the employer’s efforts to comply.

The employer may also defend against the charge by demonstrating that its policy or practice is job-related for the position in question and consistent with business necessity. The EEOC believes there are two established legal or evidentiary criteria for successfully making such demonstration. One is the formal validation for each specific job under the rarely used 1978 Uniform Guidelines on Employee Selection Procedures mentioned above and the other is the creation and use of a specific analysis for each job description that considers the “Green” factors and an individualized assessment. The 2012 Guidance does not address or acknowledge the practical difficulties of performing individualized assessments in largescale hiring by an employer.

The new guidance emphasizes individualized assessment in part because it asserts that former offenders pose risks that are overestimated by employers, particularly as the years pass with no further convictions. Speakers and advocacy groups at the briefing who work with former offenders supported this view, and gave examples of States in agreement that have passed laws restricting the use of criminal histories after a certain number of years without recidivism, and the groups’ own successes placing ex-offenders they screen who become valued employees.

“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

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