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Media focus on trendy forms of discrimination could mislead as to prevalence of others

March 29th, 2013  |  Lorene Park

Gender, race, disability, and age discrimination cases, which are bread and butter for many employment lawyers, do not garner the attention from mainstream media that is afforded to what is considered “trendy.” In the past weeks, for example, the focus has been on LGBT rights due to pending Supreme Court cases. Even religious discrimination stories of late focus mainly on bias against Muslims. This narrow focus is a problem because, as my astute, twenty-something niece informed me, her generation, which largely lacks a broad range of experiences, tends to form beliefs based on sound bites and Google research. Curious, I Googled “discrimination modern day” and the top two results were from 2007 – one asked “Can anyone give me an example of modern day racial discrimination” and the other, “Is racial discrimination a thing of the past?”

Doing my part, as an employment law attorney who thinks the younger generation needs more than sound bites, I am going to answer: no, racial discrimination is not a thing of the past. And, by the way, here are some examples of very recent cases that show the continuing importance of Title VII of the Civil Rights Act of 1964 (For you non-lawyers, this law prohibits employment discrimination based on race, color, religion, sex, and national origin).

Race discrimination. A federal court in Texas ruled that seven African-American freight terminal employees who were subjected to racist graffiti, epithets, property damage, and the presence of nooses at work could proceed on their Title VII hostile work environment claims (Brooks v Yellow Transportation, Inc c/o The Frick Co, March 18, 2013, No. 3:06-CV-1566-D). The graffiti involved frequent use of the n-word and drawings of monkeys and swastikas and the comments included “Get a rope,” “Boy,” and “Fat monkey.” Management knew of the incidents but did next to nothing. Meanwhile, in Maryland, a white employee who submitted evidence that his African-American supervisors resented his being singled out for commendation and subsequently referred to him as “that stupid White boy” and made false allegations that he was performing his job poorly, was allowed to proceed on his Title VII discrimination claim (Shank v Baltimore City Board of School Commissioners, March 19, 2013, No. WMN-11-1067).

Sex discrimination. A female mortgage loan officer in Tennessee who was fired despite being the top sales performer survived the employer’s attempts to get her gender bias case tossed by providing evidence that her supervisor made comments showing discriminatory intent (Arnold v Reliant Bank, March 21, 2013, No. 3:11-cv-1083).  He called her the “woman that makes all the money” and said that men should “take back” the mortgage department. He also said, at one point that he was going to use his “man power” to take her down. At first she thought he was joking, but it soon became apparent that he was not. As for sexual harassment, which continues to be prevalent, a Texas employee sued her supervisor (and the employer) after the supervisor sexually harassed her by making offensive comments, touching her, exposing himself both at work and in pictures he put on her cell phone, and threatening to fire her if she failed to perform sexual acts (Calvert v Brachfeld Law Group, PC, d/b/a Law Offices of Brachfeld & Associates, March 36, 2013, No. H-12-3683). She fulfilled his sexual demand on one occasion when he threatened that either she or her coworker would be fired. The coworker was fired the next day.

Age and disability. Sadly, these examples of discrimination prohibited by Title VII are not unique. There are also many cases involving discrimination against individuals with disabilities (prohibited by the ADA) and against older individuals (prohibited by the ADEA). For example, a deaf teacher’s aide, who was passed over for a position in a “deaf classroom environment” in favor of an aide who was “able to communicate as a hearing person” due to a cochlear implant, was allowed to go forward on her ADA discrimination claim (Golembeski v Moorestown Township Public Schools, March 13, 2013, No. 11-02784 (RBK/JS).

In the age column, a 60-year-old project manager at a Pennsylvania dental school, who was replaced by the dean’s 30-year-old research assistant when his job was eliminated and a new position encompassing his duties was created, was allowed to go to trial on his ADEA and state law age discrimination claims (Sullivan v Temple University, March 5, 2013, No. 11-7305). He applied for the new position but was not interviewed. There was evidence that the qualifications required for the position were changed to fit more closely to the younger assistant’s resume and some of the interview questions written by the dean asked about skills that she had, but that were never actually used by the assistant after she took the new position.

Level playing field. As this meager sample of cases illustrates, notwithstanding the relative lack of media coverage and Google presence, unlawful discrimination of all sorts remains prevalent in the workplace and anti-discrimination laws are still exceedingly relevant. At the end of the day, in addition to prohibiting harassment, these laws are mostly about leveling the playing field. Employment decisions should not be made based on someone’s race, color, gender, religion, age, disability, or other protected characteristic.