Articles Posted in Title VII

Virginia is a “deferral state” for Title VII purposes, meaning that it has a state law prohibiting discriminatory employment practices and has a state or local agency (e.g., the Virginia Council on Human Rights) authorized to grant relief from such practices. To allege discriminatory employment practices in deferral states like Virginia, prior to filing any lawsuit, an aggrieved employee must exhaust administrative remedies by initiating an EEOC charge within 300 days. Otherwise, the claim will be forever barred. (See 42 U.S.C. § 2000e-5(e)(1)). In a case decided recently by Judge Spencer of the Eastern District of Virginia, a plaintiff found this out the hard way.

In McKelvy v. Capital One Services, LLC, the plaintiff was an African-American Director of IT services, over 40 years of age. After obtaining a “right-to-sue” letter from the EEOC, he sued Capital One, claiming that the removal of his supervisory responsibilities and the failure to promote him was based on his race or his age, and thus violated Title VII’s prohibitions against unlawful discrimination in employment. Finding that the alleged discrimination took place more than 300 days before the plaintiff filed his EEOC charge, the court granted summary judgment in Capital One’s favor and dismissed the plaintiff’s claims with prejudice.

The court also observed that, even if the plaintiff had not failed to exhaust administrative remedies, he could not prevail on his claim because he failed to present supportive facts (beyond his personal belief), to rebut Capital One’s assertion that his direct reports were taken away because other associates complained about his leadership time.jpgstyle and because of some poor performance appraisals. To survive a motion for summary judgment, a plaintiff must come forward with supportive evidence.

To survive the early stages of litigation in federal court, you need to ensure your complaint not only alleges facts that, if proven true, would support a legal cause of action, but that present a plausible claim for relief. While you are far more likely to win your case at trial if you are represented by an attorney, one of the few situations in which your task may be easier without a lawyer is surviving an initial motion to dismiss. This is because the United States Supreme Court has held expressly that a “pro se” plaintiff (i.e., a litigant not represented by a lawyer) must be held to less stringent standards than those who have legal representation and are more familiar with the rules of formal pleadings.

Michael Bogan is representing himself in a Title VII employment-discrimination action against The Roomstore in Richmond, Virginia. Judge Henry E. Hudson recently denied The Roomstore’s motion to dismiss for failure to state a claim, finding that Mr. Bogan alleged “scant but marginally sufficient” factual allegations to support a claim for discriminatory discipline, an employment practice prohibited by federal employment laws. Had an attorney drafted the complaint, the result might have been different.

Mr. Bogan, an African-American, alleges that his Caucasian supervisor at The Roomstore demanded that he undergo a drug test even though a similarly situated white employee was not required to submit to the test. He claimed the white employee Papers.jpgwas involved in illegal activity and had missed several days of work. The complaint alleges that The Roomstore terminated his employment for refusing to submit to the test.

In a lawsuit brought last year by the Equal Employment Opportunity Commission against Compare Foods in North Carolina, the EEOC claimed the supermarket fired a white, non-Hispanic meat cutter due to its preference for employing Latino workers.  Compare Foods has now agreed to settle the action, which alleges national-origin and race discrimination, for $30,000 as well as by agreeing to take certain preventative measures such as distributing a written anti-discrimination policy, providing its employees with Title VII anti-discrimination training, and informing its existing employees of the lawsuit and settlement.

According to the allegations of the Complaint, Compare Foods fired Robert Bruce not because of his job performance, but because of his race (white) and national origin (non-Hispanic), and replaced him with a Hispanic worker.

Title VII of the Civil Rights Act of 1964 prohibits harassment of employees on the basis of race or national origin where the conduct is sufficiently severe or pervasive to create a “hostile work environment,” or where the harassing conduct results in a tangible change in an employee’s employment status or benefits (such as getting fired).  The law protects not just minorities but members of all races.

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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