Articles Posted in Discrimination

Like it or not, if you are 40 years old or older, your employer or coworkers may consider you downright geriatric and mistakenly assume that you are no longer able to perform the requirements of your position as well as a younger person.  When you turn 40, you officially join the ranks of “old people” against whom discrimination is prohibited by law.  The Age Discrimination in Employment Act of 1967 (ADEA) protects employees and job applicants aged 40 and older from discrimination in employment.  The ADEA makes it unlawful for employers with 20 or more employees to discriminate on the basis of age with respect to any term, condition, or privilege of employment.  This includes hiring, termination, promotions, salary, benefits, job assignments, and training.

According to a new class-action lawsuit filed in federal court in California against 3M Company, 3M engaged in a pattern of discrimination against employees older than 46 by giving them negative performance reviews, inferior training, lower pay, and fewer opportunities for promotion. The suit claims 3M discriminates against older workers throughout the entire United States, effectively shutting them out of top management positions.  The Plaintiffs estimate over 2000 workers have been the victims of 3M’s discriminatory employment practices.

The crux of the allegations apears to be that 3M singled out younger workers for inclusion in their intentsive “Six Sigma” management training program, virtually assuring that 3MADEA_woman.jpg leadership would be comprised entirely of younger workers.  The suit also claims that workers were asked to sign releases upon departing the company that contained misrepresentations of their legal rights.  The plaintiffs are asking the court to declare the releases unenforceable as a matter of law.

Qualified individuals with disabilities are entitled to an equal opportunity to benefit from the full range of employment-related opportunities available to others.  The Americans with Disabilities Act (ADA) prohibits discrimination in the workplace (as well as in government and other contexts) on the basis of disability.  It applies to employers with 15 or more employees and covers recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment.  The ADA also restricts the questions that can be asked about an applicant’s disability before a job offer is made, and it requires that employers make reasonable accommodations to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless doing so would result in undue hardship.

To be protected by the ADA, one must qualify as having a “disability” (or as having a close relationship with a disabled person) as that term is defined in the Act.  Under the ADA, a disabled person is: (1) one having a physical or mental impairment that substantially limits one or more major life activities, (2) a person who has a history or record of such an impairment, or (3) a person who is perceived by others as having such an impairment. See 42 U.S.C. § 12102(2).  The ADA does not specifically list or identify all possible impairments that would be considered disabilities.

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Days before the case was scheduled to go to trial, national department store chain Nordstrom, Inc., opted to settle the Title VII lawsuit brought against it by the United States Equal Employment Opportunity Commission in which the EEOC alleged Nordstrom violated Title VII of the Civil Rights Act of 1964 by subjecting Hispanic and black employees to racial and ethnic slurs.  While Nordstrom did not admit wrongdoing, it nevertheless agreed to a Consent Decree requiring it to pay $292,500 to 10 former employees, to distribute its anti-harassment policy to all employees in the two Florida stores at issue, and to take other steps to prevent future acts of unlawful discrimination.

According to the lawsuit, an alterations department manager complained that she “hate[d] Hispanics,” and that Hispanics were “lazy” and “ignorant.”  She made similar derogatory remarks about African Americans, such as “I don’t like blacks” and “you’re black, you stink.”  When the employees complained about the treatment, the manager retaliated by making more racially offensive comments, unfairly berating employees and citing them for alleged performance problems.

The settlement also requires Nordstrom to post a notice regarding the lawsuit and settlement in a conspicuous location at its two stores, written in multiple languages.  Included in the notice is a statement that “Appropriate corrective action, up to and including termination, based upon the circumstances involved, shall be taken against any employee (including management personnel) found the have violated the Nordstrom policy prohibiting discrimination.”

So you want to sue your boss for harassment.  For years, you have put up with his antics, but now you’ve had enough.  He has humiliated you in front of your co-workers, berated you for trivial things, and insulted you.  Basically, he is a jerk.  But do you have grounds for a lawsuit?  Has your boss “harassed” you within the meaning of Title VII of the Civil Rights Act of 1964?

Federal anti-discrimination statutes do not prohibit all harassing behavior.  They do not guarantee that your boss will be “nice” to you.  They do, however, offer powerful protection against unwelcome verbal or physical conduct based on race, color, religion, sex, gender identification, national origin, age (if you are 40 or older), disability (mental or physical), sexual orientation (depending on the circumstances and jurisdiction), and retaliation against an employee who complains of discrimination, participates in an investigation, or voices opposition to discriminatory practices.
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The Virginia city of Portsmouth agreed to settle a race discrimination case brought by the Department of Justice on March 25, 2009, the same day the suit was filed.  In the lawsuit, the DOJ accused the city of discriminatory hiring practices against African Americans in its hiring of entry-level firefighters, in violation of Title VII of the Civil Rights Act of 1964.

While the civilian labor force of Portsmouth is about 46% African American, only 12.4% of the city’s firefighters were African American.  The DOJ attributed the discrepancy largely to the administration of the “National Firefighter Selection Test,” a written examination with a pass rate of around 86% for whites but just 42% among African Americans, a “statistically significant” difference, according to the lawsuit. 

The case serves as a reminder that Title VII protects individuals not only from intentional acts of race discrimination, but in some circumstances may even protect such individuals from unintentional discrimination when such is the result of employment practices that may be well-intentioned but nevertheless have a “disparate impact” on members of a particular racial group.  As the United States Supreme Court held in 1971, Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity.”  Griggs v. Duke Power Co.,

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