Credit: Wikipedia Commons

Over the weekend, I was doing a lot of driving.  Having a kid at camp near the New Hampshire border to pick him up will do that.

So, it was time for me to catch up on some podcasts I had downloaded but hadn’t yet listened to.

I had already finished S-Town (worthy of a listen) but one of the others that I had been meaning to catch up on was Malcolm Gladwell’s “Revisionist History”.

In these episodes, he revisits an item from history that is often overlooked.

The first two episodes I picked were the most recent ones (State v. Johnson, and Mr. Holloway Didn’t Like That) and were based, in part, on interviews with legendary attorney Vernon Jordan and concerned legal cases from the Civil Rights Era.  Start there.

But the other one I listened too was from earlier in the season, called “Miss Buchanan’s Period of Adjustment”.

It too is riveting.

It tackles the landmark case of Brown v. Board of Education (the legendary school desegregation case) but from the perspective of the teachers who worked at the “colored-only” schools and who were subsequently laid off — allegedly for “performance” related reasons.

Even as a history major in college, I don’t remember hearing about this — how thousands upon thousands of black teachers lost their jobs when the schools that they taught at were closed. Different reasons were given — sometimes it was deemed to be too “difficult” for white students to be taught by black teachers.

But the effect was the same — a generation of teachers were lost to history.

That could be the end of a discrimination story, but Gladwell notes that the impact of this decision isn’t just that these teachers lost their jobs.

But rather, black students lost the opportunity to be taught by black teachers. And empirical research has shown that for black students, having a black teacher can be pivotal in reducing drop-out rates and ensuring students’ success.

The impact of these decisions still resonates today.

Gladwell highlights a study from just last year that looked for explanations about the under-representation of students of color in gifted programs.  Their conclusion?

Even after conditioning on test scores and other factors, Black students indeed are referred to gifted programs, particularly in reading, at significantly lower rates when taught by non-Black teachers, a concerning result given the relatively low incidence of assignment to own-race teachers among Black students.

For schools that employ teachers (including many of our clients), the podcast is a good reminder that the employment decisions that are made have a big impact beyond just the teachers themselves. Students lives and their successes and failures depend, in part, on the teachers that they have in life.

For other employers, listening to this podcast is a reminder that our laws governing the workplace are not all that old. Our current laws are a reflection on what occurred in the recent past. Indeed, the major federal law — Title VII — wasn’t passed until 1964 — nearly a decade removed from the Brown decision.

We’ve made a lot of progress, thankfully, since then. But ensuring fairness and eliminating race discrimination are still items that should remain high up in a company’s “must-do” list.

If you’re looking for something different to listen to, give the podcast a listen.  Gladwell may have his own agenda, but it’s thoughtful and entertaining.  And it’s a good reminder that compliance with employment laws is about more than just doing the right thing.

After my first year in law school, I clerked for Professor Kimberly Norwood at Washington University in St. Louis Law School during the summer. (If editing a law review article on statute of limitations is your thing, the experience was nirvana — I even made it to a footnote.)  We’ve kept in touch since then and have shared holiday cards and notes as our families have grown.

Earlier this week, I came across a column that Professor Norwood wrote for CNN about her family’s experiences in St. Louis.  I was touched by that article and reached out to her to see if I could cross-post it here.  She agreed.

I post this piece not to discuss the issues in Ferguson, Missouri — those are best covered by a criminal law blog like A Public Defender — but to share the salient perspective that people in America are still “treated differently based on the color of their skin.” 

For those of us who are committed to eliminating discrimination in the workplace, this perspective should inform our thinking in how we can make sure the employer-employee relationship isn’t tainted by such biases — explicitly or implicitly.   Professor Norwood has also talked about the implicit bias that exists in the legal profession and I recommend that article as well

I thank Professor Norwood for the opportunity to repost her article here.

I am a 54-year-old black woman — a mother, lawyer and law professor. I teach at the Washington University in St. Louis Law School and live 12 miles away from Ferguson, Missouri.

The median household income in my suburb is $85,000 per year. In Ferguson, it is $36,000. In my suburb, 3.5% of the people are black. In Ferguson, almost 70% are black. These are stark contrasts. Yet I share things in common with black people in Ferguson and, indeed, throughout the United States.

When I shop, I’m often either ignored as a waste of time or scrutinized as a potential shoplifter. In June, my daughter and I walked into the china and crystal department at a Macy’s department store. I was about to speak to the salesperson directly in front of me. She walked right past me to welcome the white woman behind us.

My daughter looked at me and said: “Really? Did she just ignore us?” My daughter is a young teenager at the crossroads of “skin color doesn’t matter” and “oh yes, it does.” She is in transition. I felt hurt, anger and embarrassment.

But this kind of encounter happens routinely.

Driving, I tend to have a bit of a lead foot — hitting 45 in a 35 mph zone. The few times I have been stopped in my suburb, the first question I’m asked is whether I live “around here.” Not one of my white friends has been asked that question when they were pulled over by a police officer.

Last summer, my teenage daughter was shopping with four white friends at a mall in an affluent St. Louis suburb. As they left the store, two mall security guards approached my daughter. They told her the store had called them and reported her as a shoplifter, and asked her to come with them. After a search, they found she had nothing. So far in her young life, mall security guards have stopped her on suspicion of shoplifting three times. Each time she was innocent.

I also have three sons. My two oldest are 22. They are 6-foot-5 and 6-foot-4 and each weighs more than 220 pounds. One recently graduated from college; the other will graduate in 2015. The youngest is 13. All three like to wear jeans and the latest sneakers. They love hoodies. They like looking cool. These three young men have never been arrested or even been in a fight at school.

Every time my sons leave the house, I worry about their safety. One of my sons loves to go out at night to clubs. I worry about potential unrest at the clubs — yes, black-on-black crime is a problem, and despite what many people think, black people complain about it all the time in their communities and churches and in newspapers and on radio stations.

I also worry about his drive home and his being stopped by police.

The data in Ferguson are an example of the larger picture in the St. Louis County area. Police stop, search and arrest black people at a disproportionate rate, even though they are less likely to possess contraband than white people.

This son of mine who likes to go out at night is big and tall and he has brown skin. He graduated from college in May but cannot find employment. He is an intelligent, clean-cut young man.

But the negative stereotypes automatically assigned to his skin color follow him everywhere, even in job interviews, like extra weight. It reminds me of the airline employee who asks before you can check your suitcase: Did a stranger ask you to carry something or pack your bag? In my son’s case, the answer is yes. He is carrying extra weight, unfairly, and without his knowledge or consent, packed in his luggage.

A few years ago my husband and I went on a cruise. My older boys were teenagers at the time and were taking summer enrichment classes at a school about a mile from our home. They planned to walk to school in the morning. At the top of a long list of things to do before we left for our trip was “e-mail chief of police.”

I explained to the chief that my husband and I were going on a cruise, I was a member of the community and that my two sons would be walking to school. I attached pictures of the boys, explaining that only a couple of black families lived in the neighborhood. My sons did not normally walk in the neighborhood, so they would draw attention.

I offered to bring my sons to the police department so officers could meet them. The police chief and I met and all went well.

But I’ve asked myself: How many parents of white sons have thought to add to their to-do-before-leaving-town list, “Write letter to local police department, introducing sons and attaching photos, so police do not become suspicious and harass them”?

Even though my older boys are men, I still worry about them. I worry about my 13-year-old. This worry is a stressful, and sadly normal, part of my daily existence. My youngest will be 6 feet tall in the coming weeks. He has brown skin.

These young black men have arrows pointed and ready to shoot at them daily — black-on-black crime, police encounters, societal bias and mistrust. Shortly after the Michael Brown shooting, I met with a group of my 13-year-old’s black male friends to explain to them what happened in Ferguson, and what to do and how to respond if they are ever stopped by the police. My words reminded me of stories and fears my grandfather used to share with me about his encounters with police during the Jim Crow era.

These are just a few of the many ways in which people in America are treated differently based on the color of their skin. This has been going on for a long time. I hope the events in Ferguson will encourage people to see the stark differences in the experiences of black people — not just black people who struggle economically but also black people like me — and white people as they go about their routine, daily lives.

For those of us that have been practicing for a while, it had seemed that the days of the big settlements for race discrimination cases were behind us.

After all, when the Coca-Cola and Texaco settlements were announced back in the late 1990s and 2000, many companies took notice.

But the news today is a reminder for employers that the risks still remain.

The New York Times reported this morning that Merrill Lynch has agreed to pay $160M to settle claims of race discrimination.  The monies will reportedly be available to all black brokers and trainees employed at the company since May 2001.

It is one of the largest settlements for a discrimination case ever reported.  (The Texaco and Coca-Cola suits reportedly settled for $176M and $192.5M.)

There is little doubt this case will be analyzed in the weeks and months ahead for the facts and legal theories presented.

For now, however, the case ought to serve as a reminder to employers that race discrimination claims are not yet behind us as a society and that employers need to be vigilant in ensuring that its anti-discrimination policies are followed.

Merrill Lynch has such a policy, but as the settlement shows, a policy is only as good as the enforcement behind it.


As we continue the analysis of this week’s Connecticut Supreme Court decisions, the court also clarified how employees can prove their claims of discrimination in Perez-Dickson v. City of Bridgeport.  It is the first opinion in some years to do so and employers (and practitioners) will likely want to cite this case on a going-forward basis because of that.

First, the court looked at whether proof on how the plaintiff was treated when compared to others was sufficient to support a claim of race discrimination.

In doing so, the court finally adopted language that is used in many other federal discrimination cases, namely that the other people must be “similarly situated in all material respects.” What does that mean? It means that “the plaintiff and those he maintains were similarly situated were subject to the same workplace standards and (2) . . . the conduct for which the employer imposed discipline was of comparable seriousness.”  (Hey, it’s the court; things can only get so clear.)

But then the court addressed a second, more all-encompassing vision for how claims of discrimination should be handled by courts and juries.  It is among the “cleanest” versions yet by the court on what is (or is not) required.  Here’s the test:

In summary, when a plaintiff attempts to establish racial discrimination through the use of circumstantial evidence, the plaintiff must first present some evidence from which an inference may be drawn that other similarly situated individuals not in the protected class were treated more favorably than the plaintiff. … If the defendant then articulates a nondiscriminatory reason for the disparate treatment, the presumption of discrimination arising from the prima facie case drops from the picture. … The burden will then be on the plaintiff to prove by a preponderance of the evidence that the employment action was discriminatory. Finally, although the evidence that a plaintiff presented in support of her prima facie case may be sufficient to satisfy her ultimate burden of proof, that will not necessarily be the case.

Finally, the court also addressed the role that statistics should play in employment discrimination cases.  The language suggests that the court looks upon such statistics with disfavor.  Standing alone, statistical evidence is sufficient to establish discriminatory intent in individual disparate treatment actions only when it shows a “stark pattern of discrimination . . . .”

The court concluded that the evidence offered by the employee was insufficient, as a matter of law, to support a claim of discrimination (despite what the jury may think).

Specifically, we must conclude that the plaintiff’s circumstantial evidence that the defendants treated seven white employees and four African-American employees more favorably than they treated her when she was accused of abusing a student in 2005 is insufficient as a matter of law to raise an inference of intentional racial discrimination.

And taken together, the “statistics” of the termination pattern reveal nothing.

The evidence in the present case simply does not reveal any pattern of disparate treatment on the basis of race, much less the “stark pattern” or “gross statistical disparities” that are required to prove such claims.

For employers, this case is important for understanding that establishing a race discrimination isn’t infinitely hard, it’s not easy either.  This is not to suggest that Superior Courts are now going to grant summary judgment motions and directed version motions quickly, but it should be used by employers as strong ammunition for those motions regardless.

It’s a common observation among employment lawyers that employers can be sued for lots of on-the-job actions that don’t lead to termination.  Whether that employee, however, will prevail on the claim is an entirely different question. A case yesterday decided by the United States District Court of Connecticut highlights that distiusdc hartfordnction.

In Charles v. State of Connecticut, Judicial Branch (download here), an African-American probation officer claimed that she was denied a request to transfer because of her race.  She requested a transfer from the Milford, Connecticut office, where she performed  supervisory functions, to the New Haven office where she would  perform intake functions. It was undisputed that although her responsibilities would change after the transfer, there would be no change in her pay or benefits.  The position was ultimately filled with a white woman whose skills better matched the position description.

On a summary judgment motion by the employer, Senior Judge Dominic Squatrito  found that the employee did not establish a claim for race discrimination because, among other things, she did not suffer an "adverse employment action".

What is an adverse employment action? The Court looked to some other cases in the transfer context to find:

“If a transfer is truly lateral and involves no significant changes in an employee’s conditions of employment, the fact that the employee views the transfer either positively or negatively does not of itself render the denial or receipt of the transfer [an] adverse employment action.’” Nevertheless, “[a] lateral transfer that does not result in a reduction in pay or benefits may be an adverse employment action so long as the transfer alters the terms and conditions of the plaintiff’s employment in a materially negative way.”

Here, the employee admitted that her salary and benefits were unaffected, but argued only that her transfer hurt her chances to be promoted in the future.  The Court rejected that argument saying that there was no evidence that the transfer denial would affect her in the future. Indeed, because she already had experience in the "intake" function (a reason the employee claimed she needed the position), the Court saw no reason why this denial would hurt her in the future.  Ultimately, what was telling to the court is that:

her pay was never adversely affected; she was never demoted, disciplined, suspended or terminated; and her job title was never adversely changed. Indeed, [the employee] admits that not being transferred to the New Haven office did not adversely affect her, and that she has not  experienced any sort of adverse employment action as a result of her not obtaining the transfer.

In short, the Court seems to view this dispute as nothing more than a kerfuffle. Or much ado about nothing

So what’s the takeaway for employers in other cases? Two things.

  • First, this should confirm for employers that a very small number of employees may sue for anything — no matter how trivial.  Good documentation and support for decisions (that are obviously non-discriminatory) are cruicial to getting these claims defeated.
  • Second, a good human resources practice that recognizes employees desire to get ahead and that works with those employees to develop a career path, can help employees see more options than they might otherwise have.  HR should not simply be about discipline and discharge, but working with supervisors and employees to allow employees to work to their fullest potential.

Disciplining employees for violations of company policy is, as a general rule, a good thing for an employer to follow.  However, when a company disciplines employees differently for the same offense, perceptions of discrimination (rightly or wrongly) can creep in.

Morgue file - public domainA new case released this afternoon from the United States District Court illustrates that.  In Norris v. Metro-North Commuter Railroad Co.(Case No. 06-cv-00439)(Arterton, J.), the Court denied an employer’s summary judgment on some discrimination claims because it concluded that there was a triable issue as to whether an employee was disciplined more severely because of his race. Indeed, the court also relied on an apparent statement by the supervisor that the discipline was harsher than in past years.

Readers to this blog should understand that denials of summary judgment are not uncommon in employment discrimination cases and that the decision is not a final ruling on the merits of the case.  Indeed, the employer in this case was able to get summary judgment (i.e. get the claims dismissed) on several other claims that were brought by the employee.

The case is a good illustration, though, about how small variations in punishment — even over a multiple year period — may lead to the foundation of a discrimination claim. 

Now, there may be very valid reasons why the discipline that an employer imposes is different than others. Suppose, that the employee had been warned previously, that fact might warrant a harsher punishment for a repeat violation. Or suppose that the employer was "cracking down" on these types of incidents and had notified its employees of the consequences of violations of policy. In either of the two instances, the employer’s decision will certainly be bolstered if the employer identifies, in writing, at the time of the incident, why the punishment is different than others. It still may not defeat summary judgment, but it will help bolster a company’s arguments later that the discipline was well-thought out and fair.

A review of the briefs for summary judgment spells out much more history and facts than this blog post.  You can find the memorandum in support of summary judgment here, with the opposition brief here and the reply brief here.  Combined with the court’s analysis, it provides some insights into how the federal courts review complaints that are based on multiple causes of action and addresses several related causes of action.