San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

The corporate world can be harsh.  Mega Corporation takes over slightly Smaller Corporation.  New management takes over the local sales office.  For unknown reasons, new management decides they need new sales representatives and a new regional manager.  New management lays off seven people total in the local office.  Four out of the seven have just received raises and bonuses. They are all successful employees. 

To avoid the spike in the unemployment insurance rates, they notify each employee in writing that s/he is "voluntary terminated."  Its not true.  These terminations came with no warning.  But, in claiming "voluntary termination," new management make it very difficult for the newly laid off employees to obtain unemployment benefits.  They escort the victims out the door and promise to ship them their personal belongings. This all happens just a few weeks before Christmas.  

And, since the new management gave no reason for the lay off, the newly fired employees cannot claim discrimination.  In Texas, we follow the "at will" doctrine.  An employee can be fired at will for any reason.  The only exception for most people is some form of discrimination.   Since new management provided no reason for the "voluntary terminations," the employees have no viable lawsuit.  They have no clue why they were chosen for termination and not the other 15 or so employees.  If they cannot tell the judge and jury why they were fired, how can they file a lawsuit?

I spent 12 months in Iraq, a place where the terrorists tried to kill us everyday.  I was only there one tour.  The war has lasted several years.  But, I noticed my one Christmas in a war zone, the terrorists were pretty quiet Christmas day.  In Iraq, everyday was a work day.  But, on Christmas, most of us got half a day off or more, since it was relatively quiet.  I have joked in the past that it was nice the terrorists showed a little professional courtesy and let us have one semi-safe day a year.  Hate to say it, but I think the terrorists when I was there were a little more humane than some corporations I could name....

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Sometimes, a creative employer will defend an apparently racist decision by claiming they did not discriminate against all minorities.   We see an attempt at such a defense in Diaz, Et Al v. Kraft Foods Global, Inc., No. 10-3073 (9th Cir. 8/8/11).  Two employees alleged they were victims of anti-Hispanic discrimination when they were passed over for promotion.  A third employee claimed discrimination because he was never promoted to a higher wage level. 

The three Hispanic employees claimed a white supervisor, Peter Michalac, consistently assigned disfavored tasks to them, scrubbing parking lots, cleaning sewers, as often as possible during the cold winter months.  The three employees testified that Mr. Michalac referred to one of them as a "gold digger" when he sought a raise.  He once said he got his job because he was white.  He once yelled, "I'm white and I'm right."  A fourth Hispanic employee testified that on numerous occasions, Mr. Michalac said Hipanics were "dummies" and "stupid."  He said he did not like Spanish people. 

The employer defended on the basis that Mr. Michalac did not assign all disfavored jobs to all Hispanics.  That is, he did not assign these odious tasks to another Hispanic employee, Raul Fernandez.  So, argued the employer, Mr. Michalac was not biased against all Hispanics or these three plaintiffs in particular. 

The court of appeals rejected this reasoning.  The court explained that if this line of reasoning worked, then every female victim of sex harassment would have to prove that the offending male harasser harassed all women.  The court found that discrimination against one Hispanic violates Title VII even if the employer does not discriminate against another Hispanic employee.  The statute applies to individuals, not necessarily to groups of minorities.  There is no token exception to Title VII, said the Court. 

The appellate court pointed out that the lower court appears to have incorrectly applied similarly situated analysis to a situation that did not involve similarly situated employees.  The three Hispanic employees were not comparing themselves to non-Hispanic employees.  They were presenting direct evidence of discrimination.  

Yes, observations of tone, gestures, inflections, as well as the actual words of the transgressor do make a difference.  See the decision here.  

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The EEOC has filed suit against Bass Pro Shops.  The suit claims that Bass Pro discriminates against Hispanic and black applicants.  The suit appears to be built on testimony from various managers and assistant managers.  See San Antonio Express News report.  The lawsuit started with a complaint by a fomer Houston manager who says she was fired when she complained about how black employees and applicants were treated.  

The EEOC eventually found the discrimination to be nation wide.  Jim Sacher, the EEOC Regional Attorney in Houston said managers routinely used racial slurs, told managers not to hire Hispanic and black applicants, and told employees to follow black and Hispanic customers through the store.  The suit alleges that in 2005, the manager at the Houston store told the human resources manager that it was "getting dark in here" and that the store needed to hire more white employees. 

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 The EEOC has filed suit against an oil rig construction company doing business in Texas and Mississippi.  The EEOC filed suit against Signal International LLC in Gulfport, Mississippi on behalf of indian workers recruited for US work on an H-2B visa.  The workers were recruited to come here to work as welders and pipefitters in Pascagoula, Mississippi and Orange, Texas.  Signal says they needed the workers in the aftermath of Hurricane Katrina when workers were scarce.  See San Antonio Express News report.  The workers came here from 2006 through 2007.  The suit seeks class certification. 

The suit claims discrimination based on ethnic origin and retaliation.  Some of the workers began seeing lawyers in 2007 regarding their conditions.  They were subjected to harsh language, unsanitary living conditions.  Their living area was surrounded by a fence and the immigrants were sometimes searched before entering.  In response to the workers seeing lawyers, Signal rounded up five workers and sent them home to India.  

I presume the "harsh" language refers to racial epithets.  Otherwise, such language would not be relevant to a lawsuit based on discrimination and retaliation. 

Some workers filed suit in 2008 alleging human trafficking and racketeering.  Assisted by the Southern Povery Law Center, that earlier suit is still pending. 

As always, discrimination lawsuits can be problematic.  But, retaliation suits are much easier for the worker to win.  Employers should not take reprisal for workers seeking their rights under Title VII.  That only makes the situation worse. 

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Credit checks are becoming a discriminator in selecting job applicants.  The Equal Employment Opportunity Commision has taken notice.  The EEOC filed suit against Kaplan Higher Education Corporation.  See report.  Since 2008, Kaplan has rejected applicants based on their credit scores.  

The issue for the EEOC is that relying on credit score will adversely impact minorities.  That adverse impact coupled with a lack of a business necessity makes the lawsuit viable.  Credit score has little relevance to a persons qualifications.  It might have some relevance to character issues, but there are other ways to assess character.  So, yes, it could be an interesting lawsuit.  Here is the EEOC's news release regarding the lawsuit. 

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An employee went to the EEOC.  She was being sexually harassed in a pretty blatant manner by the owner of a small company somewhere in the USA.  She meets with an investigator who tells her that she has no case, because she has no evidence.  EEOC investigators should not give legal advice, but  it happens sometimes.  They are investigators, after all.  Investigation sometimes involves discussions about evidence.   

The complainant then responds that she has witnesses.  Investigator tells her to call her Human Resources person to make a report.  The employee calls HR from the investigator's office.  She reports the sexual harassment. 

Within ten minutes, the owner calls the employe, still at the investigator's office.  She puts him on speaker phone.  The owner says, "I understand you complained about me.  You don't need to return to the office."  The owner fired the employee over the EEOC's own phone within ten minutes of her complaint.  The investigator heard it all. 

One might think, great, what great evidence!  The silly owner called and fired the employee for pursuing her rights with the EEOC - right where the EEOC could observe the whole chain of events.

Wrong.  The invstigator still insisted she had no case and refused to allow her to file a claim for discrimination or for retaliation.  He tells the employee she should just go collect her last paycheck and move on with her life.

This is the organization that on its own website says:

"The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's . . .  sex . . . . It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit."

 As I have mentioned before, do not expect much from the EEOC.  Most investigators mean well. They have far too many cases to perform an adequate investigation in any one case.  Of course, this situation goes beyond mere investigation.  The investigator already has all the necessary facts on which to start and conclude an investigation.  I can only conclude that the culture at some EEOC offices is indifferent and blind to the realities of the workplace.  

Is there room for doubt that the employer just retaliated against the woman because she opposed discrimination?  The investigator saw and hard it all.  He already has enough evidence to find in her favor on the issue of retaliation for opposing discrimination. 

The EEOC does have some teeth.  They do file lawsuits on behalf of employees.  But, situations like this one suggest that sometimes they will not see discrimination even if it is in front of their nose......

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 A colleague tells me about a woman who works at a small manufacturing facility in the Houston area.  The facility employs many Hispanic workers who speak poor English with a heavy accent. The front office folks are Caucasian.  The workers on the floor are mostly Hispanic with a few recent immigrants from Mexico.  

The woman friend needs to speak with the Hispanic workers on occasion.  She was speaking to a worker about a project and encouraging him to speak English and not call for an interpreter.  His accent was difficult, but the woman friend was communicating with him adequately, when a senior female manager walks by and interjects.  "He's only a Mexican.  Why bother?"  Then the manager continues on her errand without even looking back.  The Hispanic worker cast his eyes downward and lost his willingness to discuss the product at issue. 

Apart from notions of civil rights, how do such interactions promote efficiency?  Did the senior manager's comment promote or hinder workplace efficiency?

Another time, the company was planning their company Halloween party.  The front office folks were doing the planning discussing the details.  The office workers debated whether to invite the Hispanic floor workers.  The senior female manager, remarked," What?  Invite them and they'll bring their six kids!"  Yet, this senior female manager has never actually spoken with any of the floor workers.  She knows none of them. 

The senior female manager violates many more rules other than Title VII of the Civil Rights Act.  She daily recommends violations of tax rules, accounting procedures and others.  Folks who violate one set of rules often violate other rules, as well.  

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 Title VII of the Civil Rights act of 1964 prohibits discrimination based on sex, color, religion, and national (ethnic) origin.   Other statutes prohibit discrimination based on age and disability.  For Title VII to apply to your company, you must have 15 or more employees.  For the Age Discrimination in Employment Act to apply, you must have 20 or more employees.  Think about that.  Thousands of employers are not covered by Title VII or the other discrimination statutes.  

The intent was not to put too great a burden on smaller employers, the "mom and pop" businesses out there who employ a huge percentage of workers.  That is probably a good thing.  But, if you are being discriminated against by one of these employers, then that is not such a good thing.  A young man came to see me, once.  He had a steady girlfriend, someone he cared about very much.  But, his older female boss and sole proprietor kept "making moves" on him.  She just would not stop.  He was very upset.  He loved his work.  But, this steady pressure to cooperate was taking a toll.  I had to break the bad news to him.  Even with part-time employees, they were way short of 15 employees.  

He left my office knowing he would have to quit or risk losing his job when he was not ready for it.  Plus, his girlfriend was not happy with him for staying there as long as he had.  

In a perfect world, we would all lose or keep our jobs based on our merit.  But, in this world, we often lose or keep jobs through no fault of our own.  Welcome to free (or semi-free) enterprise......

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