You know, there is nothing good about racism. Of course. But, we seem to have become lynching parties whenever the least evidence of racism rears its ugly head. The new Mary Poppins movie has been attacked because it supposedly revives a racist portion of the famous Julie Andrews version. In the original movie, Mary Poppins dons a bit of black on her face when she dances with the chimney sweeps. I have always assumed that was soot from chimneys. Chimney sweeps, after all, probably accumulate a good bit of soot when sweeping out nineteenth century chimneys.

But, apparently I was wrong. A professor wrote an opinion piece, published by the New York Times which asserts that  Mary Poppins donned blackface. See USA Today article here. Those of us who regularly seek to prove actual racism in court cringe. The very start of showing racism requires a showing that there is no other explanation for the racist act other than racism. Yet, here is Ms. Poppins dancing with chimney sweeps. Obviously, she might have soot on her face due to chimneys, not due to mocking black persons.

Gov. Northam provides an additional example. Someone appeared in some vile pictures. But, until we know the rest of the story, we do not know if it was racism or not. It is not likely, but possible that someone was mocking a Klansman, not admiring a Klansman. It is possible, perhaps likely that Gov. Northam was donning blackface to imitate Michael Jackson in a dance contest. He says he did. Until we hear why the man was wearing the blackface, we do not know … why he was wearing blackface. I think some folks assume wearing blackface means mocking black persons. That does seem a likely explanation, but until we hear some more definitive proof, other explanations remain viable.

Liam Neeson has recently been accused of being racist when he recounted the story of his reaction when a close female friend was raped by a black man 40 years ago. The actor went roaming the streets for a week with a crowbar hoping to get into a fight with a “black bastard.” Neeson hoped, it seems, some evil black man would reveal himself by starting a fight. Good Morning America’s Robin Roberts suggested he was racist for asking his friend 40 years ago the man’s skin color. No, he responded, he asked other questions about the rapist, other than just his skin color. See CNN news report.

Racists are just everywhere, some folks believe. But, those apparent racist actions are the beginning of the conversation, not the end. We need more information. Like Northam, Poppins, and now Neeson, we must first ask for that alternative explanation for what otherwise appears to be a racist act.

That alternative explanation is the heart of every discrimination case. Will it hold water, or not? We need more information. Otherwise, we risk making it so easy to show discrimination in the public arena, that no one will believe actual racism in the court arena.

In 1700 to about 1750, the English authorities offered bounties for Catholic priests and bishops. Bishops were flat against the law. There could be no Catholic bishop in Ireland. Regarding priests, the law was that if they violated any of the many restrictions on priests, then they could be arrested and punished. The English authorities offered 25£ for priests and 50£ for a bishop. Those were princely sums in those days. Persons known as priest-hunters became well-known. The priest-hunter would have to travel to Dublin to collect his bounty. Some priest-hunters became well known.

Toward the end of the priest bounties, the Catholic parishioners reached a point where if they would see one of the well-known priest-hunters on the streets of Dublin, one would shout, “There’s a priest-hunter!” Instantly, a crowd would form. The hunter became the hunted. He had to sprint for his very life. Crowds of angry Catholics would spring after the vile priest hunter.

We have become that crowd on the streets of Dublin. Someone shouts, “There’s a racist!” and instantly, a crowd of pursuers forms. But, unlike the priest-hunters, the racist has not identified himself by collecting a bounty from the Dublin authorities. We think the person is a racist. We do not know the person is a racist.

I am glad racism has incurred the opprobrium it deserves. But, a racist is just not that apparent. Proving racism is complicated and it should probably remain complicated.

In a Harris Poll survey a few years ago, researchers found that 20% of hiring managers have asked unlawful questions in interviews. They asked these unlawful questions not realizing at the time that such questions could lead to legal liability. CareerBuilder commissioned the survey. A CareerBuilder representative said an interviewee who is asked these sorts of questions could decline to answer. If the hiring manager insisted on an answer, then that insistence suggests this might not be a good place to work. Those questions include:

  • What is your political affiliation?
  • What is your race, color, or ethnicity?
  • How old are you?
  • Are you disabled?
  • Are you married?
  • Do you have children or plan to?
  • Are you in debt?
  • Do you social drink or smoke?

Some of these questions are clearly unlawful. But, I do not see a legal problem in asking someone if s/he smokes or drinks. And, just to remind my readers, these questions only become an issue if some adverse personnel actions develops later for which there is no good, objective rationale. The best defense to a lawsuit or complaint remains simple: document problems and base that documentation on objective reasons.

The Americans with Disabilities Act provides that a person is entitled to an accommodation if needed. But, sometimes the need for accommodation is not so apparent. Back injuries are notorious for being unpredictable. Russell Holt applied for a job with BNSF railway. He received a job offer conditional on passing a physical exam. Mr. Holt had a history of back surgery. His medical doctor and medical information supported a positive result. But, the employer’s doctor, Dr. Jarrard, refused to certify the applicant unless he received an MRI. Mr. Holt could not afford an MRI. The Equal Employment Opportunity Commission filed suit, alleging that requiring the job applicant to pay represented discrimination against a person with a disability. That lawsuit became EEOC v. BNSF Railway Co., No. 16-35447, 2018 WL 4100185 (9th Cir. 8/29/2018).

The applicant’s insurance company would not pay for the MRI, because he was not in any pain, at present. The MRI would then cost over $2500.

The Ninth Circuit Court of Appeals asked the question, who must pay for a medical exam. The court viewed the claim as a “regarded as” disabled claim, noting that Mr. Holt suffered from permanent disc damage. BNSF tried to argue that it did not consider him impaired. It just wanted to be “sure.” The court was not persuaded. The employer pointed to a case that was in effect overruled by the ADA Amendments Act. But, more importantly, in requesting more information about Mr. Holt’s back condition, BNSF had made an assumption that the applicant had a back condition which prevented him from performing the duties. That presumption would persist unless the applicant could overcome it. The employer, said the court, cannot hide behind the level of uncertainty about the precise nature of his back condition. A “perceived impairment” is consistent with the ADAAA’s broad coverage.

The court then addressed the requirement that the applicant pay for the physical exam. The court had no trouble in finding that requiring a job applicant to pay the cost of a physical exam is a condition of employment which is based on a perceived impairment. An employer can only impose a condition of the job if it imposes the same requirement as all applicants. BNSF, however, only imposed this requirement to pay for an MRI on the job applicant who was perceived as impaired. That condition amounts to a violation of the ADA. And, noted the court, if the employer was not required to pay for such tests, then the test would act as a screening criteria for persons with a disability. That would also amount to a violation of the ADA. The court affirmed summary judgment in favor of the plaintiff.

See the decision here.

The Eleventh Circuit recently overturned summary judgment in a discrimination case. In Vinson v. Koch Foods, No. 17-10075 (11th Cir. 5/23/2018), the plaintiff sued for discrimination based on her national origin, Puerto Rican and based on race. She had worked for the employer a couple of years in Human Resources as a clerk and as a translator.  Ms. Vinson and two white co-workers took time off to visit a sick co-worker in the hospital. All three workers were placed on suspension when they returned to work. Of the three women, only Ms. Vinson’s duties were changed dramatically afterward. The plaintiff was required to work on the production line, processing chickens and operating machinery. Another Puerto Rican woman filled her job in HR. Later, Ms. Vinson was fired. The explanation varied. Some said her position was eliminated. Some said she was not producing enough.

The lower court granted summary judgment remarkably in part because Ms. Vinson did not mind being on the production line. She received a raise. But, as the Eleventh Circuit noted, her subjective view of the job change is not controlling. That she received a pay raise one month before being fired does not remove the adverse personnel action.

Her new duties included pulling guts from chicken carcasses, sawing chicken carcasses, hanging dead chickens on shackles, cutting and removing damaged meat from chicken carcasses, using sealing machines for packaging, and weighing boxes of meat. This was a major change in her duties. Too, the new job did not exist on any organizational chart for the employer. She had no job description. The job did not exist at other plants. Her supervisor did not know what she was supposed to be doing on the production floor. A jury could conclude, said the court, that the job was created just for Ms. Vinson.

Regarding the termination, the plaintiff presented a mixed motive case for the termination. Among the reasons for the summary judgment was that Ms. Vinson did not discredit the employer’s reasons for firing the woman. This amounted to a requirement that the plaintiff show pretext, said the court. But, this is a mixed motive case, in which the standard is a motivating factor. That is, the standard is whether the improper motive played a motivating role in the decision. So, the plaintiff did not need to show pretext. She only needed to show that there was genuine issue of fact regarding whether race or national origin was one motivating factor in the decision. Even so, the plaintiff did present evidence of pretext. The supervisors’ accounts of the termination did not match.

The lower court also found that the plaintiff presented no evidence that race or national origin played a role in the decision to terminate. But, a union supervisor expressly said he had observed Ms. Vinson’s supervisor disciplining Hispanics more harshly than white workers. The court noted that Ms. Vinson was replaced by another Puerto Rican female. But, that in itself does not show a lack of racial or national origin motive. The court reversed summary judgment regarding this claim. See the decision here.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex, color, religion, race, and national (ethnic) origin. Other statutes prohibit discrimination based on age and disability. But, the statute does not apply to all businesses. An employer must have 15 or more employees for Title VII to apply. For the Age Discrimination in Employment Act to apply, an employer must have 20 or more employees.  That means thousands of small employers are not covered by Title VII or the other discrimination statutes.

The intent behind this number of employees was to not burden smaller employers, the “mom and pop” shops. Small businesses employ a huge percentage of workers. It was felt at the time that new rules and statutes was more than the small businesses could handle. We might not feel that way, today. And, certainly, for those folks working for smaller employers who may be fired due to race, age, etc., this is not 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, his employer was way short of 15 employees.

He left my office knowing he would have to quit or risk losing his job. He was not ready to give up his girl friend. And, his girlfriend was not happy with him for staying there as long as he had. We often assume today that we are entitled to a discrimination-free work place. But, that is not always true.

The Equal Employment Opportunity Commission has sued a local icon, Whataburger. The Tallahassee Whataburger, the EEOC alleges, harassed a manager after she refused to hire only white people. The EEOC claims the General Manager told the assistant manager to only interview people with “white sounding” names. Vanessa Burrous, instead, hired seven black employees and one white employee. The GM later chided Burrous for the hiring and told her the order came from upper management. The GM allegedly added that our customer base is white and we want workers who reflect that base. Ms. Burrous says she was harassed and forced to quit. See San Antonio Express News report.

Yes, it does violate Title VII to hire workers of a particular nationality or race, even if some customers might prefer persons of a particular race. If the plaintiff can support her case, Whataburger’s action would constitute a violation of Title VII. It is unfortunate that Ms. Burrous quit. It is difficult to show things were truly so bad that she had to quit – as opposed to simply wanting to quit. Whataburger is headquartered here in San Antonio.

Many employers require drug tests for their employees. What happens when the drug testing laboratory commits an error regarding the test? Failing a drug test can result in termination. That is what happened in Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572 (Tex. 2017). The employer had a random drug testing program. Exxon Mobil employed third party laboratories to administer the test. The employee tested positive for illegal substances. Gilberto Rincones said he saw DISA, Inc. follow poor procedures in gathering the urine samples. He claims they made a mistake. DISA offered him the opportunity to re-test. He did not satisfy the requirements for a re-test. But, he took a test on his own through another source and tested negative for drugs. He did not complete the rehabilitation program offered by Exxon and was placed on inactive status. He later filed suit against Exxon and against DISA.

On appeal, the Texas Supreme Court found Exxon was not liable for the actions of DISA. The lab was not the agent of the employer, said the court. It had no contract with the lab. And, its requirements of the lab did not amount to control of the lab. The plaintiff sued the employer for discrimination, arguing that three non-Hispanic employees were allowed to continue working for Exxon even after testing positive for drugs. But, the court found those three employees were not good comparisons to Mr. Rincones, because they were management.

The plaintiff sued DISA for tortious interference with his employment and for negligence. But, the court looked at the date his lawsuit against the lab was due. The court found that Mr. Rincones’ right to file suit accrued when he first learned of the false positive result, not when Exxon placed him on active status. He learned about the false positive on April 14, 2008. He was placed on inactive stays in August, 2008. He then filed suit in August, 2010. So, he was too late by a few months, said the court.

The plaintiff also alleged defamation against Exxon. He claimed that because his employer terminated him for a false reason, he would be forced to provide that false reason to future employers. That sort of defamation is known as “self-publication.” The employee is forced to self-publish the defamatory statement. The Texas Supreme Court recognized that many Texas courts of appeals have accepted compelled self-publication in the past. Nevertheless, the Supreme Court refused to agree. The court made the remarkable claim that if it recognized self-publication, then that recognition would encourage employees to worsen the harm done them by the employer. That is, allowing the doctrine of self-publication would prevent the employee from mitigating his damages. The court is basically saying the employee might not look for work if he had to mention something damaging about himself. Such a notion is simply silly. Few, if any employees, have the option of not looking for work after termination. The Texas Supreme Court has continued its antipathy to plaintiffs. It also betrays a lack of connection to average workers who live from paycheck to paycheck. See the opinion here.

The toughest sheriff in America is dropping hints that he would like a pardon from the President. Former Sheriff Joe Arpaio told the Arizona Republic that he would accept a pardon from Pres. Trump. See Politico news report here. I recently wrote about the court finding him guilty of contempt here. He says he talks with the President now and then, but will not brag about it.

So, he does have some self-restraint, after all.

It is a strange ruling in Alkhwaldeh v. Dow Chemical Company, 851 F.3d 422 (5th Cir. 2017). The three judge panel consistently refers to Mr. Alkhwaldeh by his first name, Ammar, not by his last name. The opinion also recognizes  that the employer provided inconsistent explanations for the termination, but disregards those inconsistencies. Dow Chemical claimed it fired Mr. Alkhwaldeh because of poor performance in 2009 and because he failed to complete a Performance Improvement Plan in 2010. But, as Dow employees pointed out, Mr. Alkhwaldeh would not still be employed if he did not successfully complete his PIP. The court disregarded that inconsistency by pointing to “numerous” other factors, such as the strength of his prima facie case, the probative value of the proof that the employer’s claim was false and “any other” evidence that supports the employer’s case.

The court then explains that the ultimate question is not about pretext but whether a reasonable fact-finder could conclude that the employer would have fired the employee “but for” his opposition to discrimination. Mr. Alkhwaldeh had expressed that he believed he was the victim of discrimination back in November, 2009. The plaintiff is Moslem, so doubtless he was subject to many anti-Moslem jokes.

But, the decision is simply wrong. Pretext alone is sufficient basis upon which a jury can conclude that an improper motive played a role. We have known that since the decision in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (Even if a plaintiff offers only indirect evidence, that may be sufficient basis on which a jury may infer discriminatory motive. Proof that the employer’s explanation is unworthy of credence is one form of of circumstantial evidence that is probative of intentional discrimination, and it is one form that can be quite persuasive). It is also unfortunate that the court essentially engaged in fact-finding when it concluded that the plaintiff’s evidence of pretext was not sufficient to overcome the alleged “other evidence” in the employer’s case. Weighing evidence is not appropriate for summary judgment.

But, it appears the employee received his low performance rating in October, 2009, just a month before he was subjected to overt comments about his religion. So, his complaint about discrimination came after the poor rating. That timing issue may have affected the rest of the court’s analysis. This decision reminds us that some courts are reticent about relying too heavily on inconsistent explanations for a firing. Ito seems to me that some courts sympathize with HR departments in responding to EEOC charges. Perhaps, some judges see those departments as over-worked. I think any such sympathy would be discounted if those judges had met with terrified victims of those HR departments and managers who acted with illicit motives. And, one has to wonder how careful the panel was if the court did not understand which name was the employee’s last name. This was also one of those very rare cases in which the EEOC found in favor of the employee. Such a finding is almost as rare as snow in July. One would think such a case would be impervious to a motion for summary judgment. See the decision here.

Sherrif Joe Arpaio, the self-styled “toughest” sheriff in the country, is going on trial. He had been warned not to detain immigrants just because they lacked legal status. The order came from U.S. District Judge Murray Snow after the deputies had detained several Mexican-American citizens and Mexicans here on lawful visas. Sheriff Joe, the toughest sheriff in the country, disregarded the order for some 18 months. His deputies continued to detain immigrants. The judge said the Sheriff’s office was engaging in racial profiling. I wrote about that ruling here and here. Sheriff Arpaio hired a private investigator once to investigate Judge Snow’s wife. He famously claimed he would investigate Pres. Obama’s birth records. He has always courted the news whenever he could.

The current trial results from the Department of Justice charging the sheriff with criminal contempt. He could be punished with a fine or prison up to six months. See NPR news report. The toughest sheriff in the country lost his bid for re-election last November. This may be his last opportunity to garner further headlines.

The toughest sheriff lost his first motion to recuse Judge Snow in 2015. He appealed to the Ninth Circuit and lost. He later filed a second motion to recuse Judge Snow in 2016. But, the criminal contempt is proceeding under a different federal judge, Susan Bolton. See KJZZ news report.

Judge Snow was the second federal judge assigned to the racial profiling case. Sheriff Arpaio succeeded in getting removed a Mexican-American judge initially assigned to the case. But, more importantly, he uses these challenges with the federal judges as fodder for fund-rasinng. It was successful tactic to talk about his confrontations with the feds. Now, it seems that one fed will confront him.