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.