Meeting of April 15, 2015 - EEOC at 50: Confronting Racial and Ethnic Discrimination In the 21st Century Workplace
I want to thank the Commission for inviting me to offer testimony on work done by the Miami District office and to highlight recent litigation efforts nationally to enforce Title VII's prohibitions against racial and ethnic discrimination. I also will offer my insights into the trends we see in our Florida-based office regarding race and ethic workplace discrimination and our efforts to address it. Finally, I offer some recommendations based on my experience as to how the Commission can be even more effective in addressing these issues today and in the future.
I joined the Commission as the Regional Attorney for the Miami District office on September 27, 2010 after practicing civil rights law in the private sector for over 25 years primarily through my own small statewide plaintiff-side firm based in Miami. When it was announced that I would become the new Regional Attorney in Miami, many of my friends and professional acquaintances questioned the wisdom of my decision to leave private practice to work for the federal government. One frequently asked question was, "Why now, after the election of the first African American president, would you decide to join the EEOC? The clear suggestion was that Barack Obama's election meant that the "mission was accomplished" for the war on civil rights. Of course, I, along with many others, was hopeful that the election of an African American as President signaled a huge step forward toward racial equality in the workplace and in other areas of American life.
Sadly, soon after I started with the Commission, it became clear to me that this was not the case. I vividly recall soon after I started reviewing several charges filed by African American sales personnel at a northern Florida car dealership complaining of a racially hostile work environment and discriminatory treatment regarding the receipt of sales leads. Following an investigation and cause determinations, a conciliation agreement was reached which compensated the charging parties who had resigned and required training to prevent this conduct from happening in the future.
Beyond my introduction to the EEOC almost 5 years ago, any question about whether we live and work in a post-racial America today can be sadly dispelled by three separate news items published in the local Miami media within the past month. Although not directly related to workplace racial discrimination, these three unrelated incidents underscore the role race continues to play in 2015 America and, specifically, in South Florida.
First, in late March, 2015, the South Florida news media reported that the Ft. Lauderdale Police Department fired three police officers and another resigned after an internal investigation found that they had exchanged multiple racist text messages and joked about "killing niggers."1 The local NAACP chapter has asked the Department of Justice to investigate.2
The second high profile incident involved the March, 2015 firing of Univision TV show host, Rodner Figueroa, for comparing First Lady Michelle Obama to an ape.3 Univision issued a news release condemning Figueroa's remarks and Figueroa wrote an open letter to the First Lady apologizing for his lack of judgment and stating he did not intend to discriminate. As reported by the Miami Herald, the firing sparked a new debate on race among Latinos.4 Michelle Gonzalez Maldonado, Professor of Religious Studies at the University of Miami was quoted as saying: "In the United States, the idea of race is very black and white. The problem with that is that many Latinos are mixed race and the reality of race is much more complex in Latin American countries. That does not mean that there is not racism. There is. But it's a type of hierarchy of color. I call it pigmentocracy."5 The Univision scandal also generated debate about diversity in the Spanish language media. The President of the National Association of Hispanic Journalists, Mekahlo Medina, in a release posted online, stated that Latino journalists "should not ignore the blatant racism that exists in our communities and in the newsrooms" and questioned, "How many Afro-Latino anchors are seen in Spanish language newscasts?"6
A third revealing incident was reported in the Miami Herald on April 1, 2015. Unfortunately, it was not an April fool's joke. According to the Herald, U.S. District Judge Marcia Cooke, the first African American female appointed to a federal judgeship in Florida, was walking to her car at her Bay Harbor Islands condominium. Judge Cooke was on her way to work and dressed in professional work attire. The Judge was approached by a candidate for town council who started the conversation by asking her, "What family do you work for?" Judge Cooke responded, "Excuse me? I live here." The candidate later stated he regretted his remarks and that he assumed she was a housekeeper. 7
Each of these three incidents took place in the past 30 days in South Florida. They were not discovered by exhaustive research, but are well publicized incidents which underscore how issues of race and ethnicity remain vibrant and real in our communities, in our workplaces and in our lives.
I strongly believe that some of the most important work the Commission does relates to the first Strategic Enforcement Plan priority - to eradicate systemic barriers to hiring and recruitment and, I would add systemic barriers to promotion as well. This work should receive an even higher priority. I base this view on the frustration in dealing with these issues in private practice in contrast to the investigative tools available to the EEOC. The private bar is generally powerless to address systemic hiring discrimination since the evidence necessary to even assert these claims is rarely, if ever, in the possession of the victim. Individuals not hired based on race or ethnicity may have a gut feeling that something malicious was at work - maybe their interview seemed too perfunctory or how the enthusiasm over a colorless resume evaporated when the applicant met the decision maker face-to-face, but the private bar cannot base a claim on that limited information. It is critical that the Commission continue to prioritize the investigation of charges where preliminary information and racial and ethnic workplace issues raise the potential of systemic hiring discrimination. This should include obtaining applicant flow data, evidence regarding recruitment practices, decision-making process evidence and an analysis of the work force by position, race and ethnicity. In addition to documents and data analysis, individuals responsible for developing and implementing the process for advertising vacancies and the recruitment of applicants and those involved with the decision making process should be interviewed. Bias at any step can unlawfully taint the decision making process. In light of the Supreme Court's decision in Wal-Mart v. Dukes and forced arbitration policies, which both limit or even bar class claims, the reality is that if the Commission does not investigate and seek to uncover these systemic practices, they will not be addressed.
Along these lines, I cannot over emphasize the impact of the February 17, 2012 EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records. Since the guidance was issued, I have spoken at numerous bar association, employment attorney and human resources manager meetings all over Florida and no issue has engendered more discussion than this guidance. Management side counsel and human resources personnel have advised me that they have reexamined their criminal background screening practices due to the guidance. These changes have also been reflected in charge resolutions. For example, in one successful conciliation out of our office, an African American applicant for a truck driver position claimed he was denied hire because of a 10 year old drug related conviction in violation of Title VII. The investigation resulted in a cause determination and the change of the criminal background screening policy.
According to recent U.S. census data, Florida's population is estimated at nearly 20 million making it the third most populated state behind California and Texas.8 Of that nearly 20 million, approximately 3 million or 15% are Black or African American and a little over 4 million or 22% are Hispanic or Latino.9 Additionally, although abundant social science data reveals that drug use is comparable in the black and white communities, Blacks made up for over 40% of all drug arrests in Florida and comprise 46% of the incarcerated population.10 Consequently, while it may vary by employer and position, the indiscriminate reliance on criminal background screening will fall more harshly on Black job applicants.
As I previously stated, I believe the guidance has had a transformational impact on how criminal background screenings are used by many employers in the hiring process. Indeed, in educational publications, the Society of Human Resource Managers (SHRM) recognizes that "(p)rior to making inquiries into an applicant's or employee's criminal records, employers should establish whether such inquiries will adversely impact minority person and whether the inquiry is directly related to job performance or justified by a legitimate business necessity [since] an employment practice that adversely impacts minorities without a justifiable business necessity is considered a violation of Title VII."
Additionally, investigations raising race discrimination through criminal background screening practices trigger probing investigations in our District which require an employer to disclose all of the details of that process. Finally, and maybe most significant, is the threat of litigation like the EEOC lawsuits against BMW and Dollar General Stores. These lawsuits deter employers from ignoring the guidance and motivate employers to examine the possible consequences of discriminating against Black and Hispanic applicants through a non-job-related screening policy not grounded in business necessity. I believe the guidance and the EEOC's work in this area has benefitted many Black and Hispanic job applicants who would otherwise have been excluded from consideration solely based on prior arrests or convictions. This Commission should not retreat from its aggressive enforcement in this area of Title VII including litigation when necessary. The societal consequences of importing racial bias from the criminal justice system into employment decisions should continue to be aggressively addressed.
The Miami District office has aggressively enforced race and ethnic discrimination Title VII violations through litigation and successful conciliation. Several of the recent cases are summarized below. As described below, where appropriate we have sought prospective relief to remedy the violations in the future through hiring goals, targeted recruitment and strict compliance requirements.
Miami District Office Litigation - Racial and Ethnic Discrimination
1. EEOC v. Prestige Transportation Services, No. 2:12-cv-14439-DLG (S.D.Fla., Resolved by Consent Decree Sept. 26, 2014) (Systemic). The EEOC charged in its suit that Prestige's predecessor company, Airbus Alliance, Inc., which was under different ownership, repeatedly instructed its human resources manager not to hire African-American applicants because they were "trouble" and "would sue the company." Airbus also stated that it would be a "waste of paper" to give applications to black employees, the EEOC said. According to the EEOC's suit, Airbus's owners referred to one employee as "the monkey" and fired her after she filed a discrimination charge with the EEOC. In addition, Airbus terminated its human resources manager and another employee once they opposed the company's discriminatory practices. The Consent Decree awarded $200,000.00 for the charging parities and class and established hiring goals and targeted recruitment.
2. EEOC v. OfficeMax North America, Case No. 8:12-cv-00643-EAK-MAP (M.D.Fla., Resolved by Consent Decree Dec. 1, 2012). OfficeMax, a nationwide retailer of office and technology products with more than 900 stores and approximately 29,000 sales associates in the U.S. and Mexico, paid $85,000 and agreed to targeted recruitment of African-Americans and Hispanics in settlement of EEOC's case. The EEOC's lawsuit charged that OfficeMax violated federal law when its store manager retaliated against a sales associate after the associate complained that he had been terminated because he is Hispanic. The store manager was required to immediately reinstate the sales associate, but then engaged in a series of retaliatory actions designed to generate reasons to terminate him again and/or force the sales associate to resign, the agency alleged. In addition to the monetary settlement, OfficeMax agreed to target additional recruitment efforts in the Sarasota/Bradenton area to reach more African American and Hispanic applicants, provide training for its management and human resource personnel in three locations in the Bradenton/Sarasota area on racial harassment and retaliation, and will report future internal discrimination complaints to the EEOC.
3. EEOC v. City of Jacksonville Firefighter's Union, IAFF Local, No. 3:12-cv-00491-MMH-TEM (M.D.Fla., Pending, Filed April 30, 2012). The Miami District Office partnered with the Department of Justice to litigate this case challenging a racially discriminatory promotion practice against a local chapter of a firefighter's union (EEOC) and the City of Jacksonville (DOJ), both of whom are necessary to secure full relief from discrimination for African American firefighters.
4. EEOC v. AJ 3860, LLC d/b/a "the Executive Gentlemen's Club," No. 8:14-cv-1621-T-33TGW (M.D.Fla., Pending, Filed July 2, 2014). According to the EEOC's suit, Bliss Cabaret's owner, Michael Tomkovich, created and maintained racially discriminatory practices which resulted in the firing of a recently hired African-American bartender. A new manager was instructed to immediately fire the bartender he had hired because Tomkovich did not want black bartenders working there. Bliss Cabaret's manager told his supervising regional manager and Tomkovich that he did not agree with Bliss Cabaret's policy of not hiring black bartenders. After he objected to Tomkovich about the discriminatory practice, the manager was suspended and then fired.
The EEOC's Miami District Office has also been successful in administratively resolving charges of discrimination based on race and national origin. The examples below of successful resolutions do not identify the name of the employer, since Title VII precludes disclosure of that information absent the employer's consent.
Successful Administrative Resolution Example #1. Twelve charging parties filed charges against an employer alleging discriminatory discharge based on race and national origin. The evidence showed that the employer fabricated disciplinary reasons for each of the employees. The charges were resolved for over $600,000.00 and injunctive relief.
Successful Administrative Resolution Example #2. Four charging parties filed charges against employer alleging discriminatory discipline based on race and retaliation. The charges were resolved for over $400,000.00 and injunctive relief. The settlement also provided funds to several class members.
Successful Administrative Resolution Example #3. One charging party filed a charge against a large employer alleging discriminatory failure to promote based on race and retaliation. The evidence substantiated charging party's claim and revealed the existence of a class of black individuals also denied promotion. The charge was resolved for $500,000.00, training, and notice posting.
National Litigation - Racial and Ethnic Discrimination - Selected Resolutions Since 2013
1.EEOC, et al., v. Local 28 of the Sheet Metal Workers' Int'l Ass'n, et al., Case No. 71 Civ. 2887 (S.D.N.Y., Consent Decree Approval Pending). Subject to approval by the U.S. District Court for the Southern District of New York, Local 28 of the Sheet Metal Workers' International Association, the trade union for sheet metal journeypersons in New York City, has agreed to create a back pay fund for a group of minority sheet metal workers in partial settlement of race discrimination claims against the local union. Pursuant to the settlement, it is estimated that the union will pay approximately $12.7 million over the next five years and provide substantial remedial relief to partially resolve claims made against the union by the EEOC and others. The current settlement covers claims of work-hour disparities based on race for the 15-year period between April 1, 1991 and June 30, 2006. This settlement supplements a 2008 settlement of $6.2 million that covered back pay claims from January 1, 1984 through March 31, 1991.
2. EEOC v. Patterson-UTI Drilling Company LLC, Case No. 1:15-cv-00600 (D. Col., Resolved by Consent Decree, March 2015). Patterson-UTI Drilling Company LLC agreed to pay $12.2 million to settle EEOC's lawsuit accusing it of discriminating against its minority workers and allowing a hostile work environment that featured ethnic slurs, intimidation and withholding of promotions, among other things. The Consent Decree includes a fund to compensate all minority workers it employed between Jan. 1, 2006 and the date the Decree was entered. Additionally, Patterson-UTI Drilling was required to create and fill a new vice president position that focuses on equal employment opportunities in the company, establish an anti-discrimination training program for its employees, file progress reports for both the four-year duration of the consent decree and another year after it terminates.
3. EEOC v. ACM Services, Inc., Case No. 8:14-CV-2997-PWG (D. Md., Resolved by Consent Decree, November 2014). ACM Services, Inc., a Rockville, Md.-based environmental remediation services contractor, paid $415,000 and provided comprehensive equitable relief to resolve a class race, gender discrimination and harassment lawsuit. The EEOC charged, among other allegations, that ACM Services engaged in a pattern or practice of race and sex discrimination in hiring and also harassed two women based on sex, race and national origin and retaliated against them. According to the EEOC's suit, ACM Services exclusively used word-of-mouth recruitment practices for field laborer positions with the intent and effect of failing to recruit black job applicants. The EEOC said that ACM Services also refused to hire black job applicants or female applicants for field laborer positions and failed to preserve employment applications. In addition to the monetary relief, the three-year consent decree resolving the lawsuit enjoins ACM Services from engaging in any future race, sex, or national origin discrimination or retaliation, and provides substantial non-monetary relief. Among other things, ACM Services will: (1) implement numerical goals for hiring qualified black applicants and female applicants, including both permanent and temporary or contingent workers, for field laborer positions; (2) create a job opportunities advertisement program to recruit a diverse pool of qualified applicants for field laborer positions and refrain from using word-of-mouth recruiting as its sole method for seeking job applicants; (3) conduct extensive self-assessment of hiring and work assignment practices to ensure non-discrimination and compliance with the terms of the consent decree; (4) pay for advertising of the class claims process; and (5) submit reports to the EEOC concerning numerical hiring goals and other consent decree compliance issues.
4. EEOC v. A.C. Widenhouse, Case No. 1:11-cv-00498 (Appellate Decision, June 2014). The U.S. Fourth Circuit Court of Appeals upheld the EEOC's January, 2013 jury verdict and more than $243,000 and injunctive relief for victims of racial harassment and retaliation perpetrated by A.C. Widenhouse, Inc., a Concord, N.C.-based trucking company. According to the EEOC's lawsuit, African American truck drivers were repeatedly subjected to unwelcome derogatory racial comments and slurs by the facility's general manager, the company's dispatcher, several mechanics and other truck drivers, all of whom are white. The comments and slurs included the "N" word, "monkey," "coon" and "boy" and well as comments about a noose including, "This is for you. Do you want to hang from the family tree?" A three-year injunction also requires A.C. Widenhouse to implement a written anti-discrimination policy; conduct training on Title VII to all employees and to all owners involved in the company's operations; post the anti-discrimination policy and a notice to employees regarding the lawsuit; and provide the EEOC with periodic reports regarding complaints about racial harassment.
5. EEOC v. Mesa Systems, Inc., Case No. 11-cv-01201-RJS-BCW (D. Utah, Resolved by Consent Decree, September 2013). Grand Junction, Colo.-based Mesa Systems, Inc., a moving and storage company operating through subsidiaries in six states, paid $450,000 and furnished other relief required by a court-ordered consent decree to settle a national origin discrimination lawsuit filed by the EEOC. This is the largest national origin employment discrimination settlement ever achieved by the EEOC in Utah. According to the EEOC's lawsuit, Hispanic workers employed at Mesa Systems' Salt Lake City warehouse were subjected to discrimination based on national origin. The immigrant employees were subjected to a hostile work environment in many ways, including racist name calling and slurs, such as "(expletive deleted) Mexicans," "(expletive deleted) you, mojado" [wetback] by the warehouse managers. The EEOC also alleged that employees of various national origins were subjected to a restrictive language policy that had a disparate impact against Hispanics and Asians/Pacific Islanders. The EEOC further claimed that a number of employees suffered retaliation, including terminations and reductions in hours, after two employee petitions and other complaints were submitted to management about the national origin discrimination.
6. EEOC v. River View Coal, LLC, Case No. 4:11-cv-00117 (W.D. Ky., Resolved by Consent Decree, September 2013). River View Coal, LLC paid a total of $245,000 to a class of African-American applicants to settle a class race discrimination lawsuit filed by EEOC. River View Coal excluded a class of African-American applicants from coal mining jobs at its Waverly, Ky. facility since Aug. 1, 2008. The consent decree provides that the settlement proceeds will be distributed to a class of applicants and requires River View Coal to report on its hiring for two years and to endeavor to increase its racial diversity in the workforce by advertising all open underground positions throughout the duration of the decree with the Marion, Ill., employment services office, the Harrisburg, Ill., WorkNet office and the unemployment offices that serve Union County, Ky., and Vanderburgh County, Ind.
I thank the Commission and the General Counsel again for inviting me to speak today. It truly is an honor.
1 See Ray Downs, Fort Lauderdale Cops fired for Racist Texts and Video About Killing Black People, NEW TIMES, March 20, 2015, available at http://www.browardpalmbeach.com/news/fort-lauderdale-cops-fired-for-racist-texts-and-video-about-killing-black-people-6912786; see also, Jessica Roy, Fort Lauderdale Cops Fired for Sharing Racist Text Messages and Video, NEW YORK MAGAZINE, March 25, 2015, available at http/www.nymag.com.
2 Erica Pesantes, FBI Seeks Info on Fort Lauderdale Police Investigation and Firings over Racist Messages and Video, SUN-SENTINEL, March 22, 2015, available at http://www.sun-sentinel.com/local/ broward/fort-lauderdale/fl-fort-lauderdale-racism-investigation-widens-20150322-story.html.
8 FLORIDA QUICKFACTS FROM THE U.S. CENSUS BUREAU, http://quickfacts.census.gov/ qfd/states/12000.hmtl, (last visited April 3, 2015).
10 See, e.g., FLORIDA PROFILE, PRISON POLICY INITIATIVE, http://www.prisonpolicy.org/profiles/FL.html, last visited April 3, 2015; Florida Legislative Office of Economic and Demographic Research, Table 3C, Total Population by Race and Hispanic or Latino: April 1, 2010, http://edr.state.fl.us/Content/population-demographics/2010-census/data/2010CensusRedistrictingFile Table3c.pdf; Part I and II Arrests for Florida by Age, Sex, and Race: 1998-2013, FLORIDA DEPT. OF LAW ENFORCEMENT, https://www.fdle.state.fl.us/Content/getdoc/2c4b035b-369b-406f-a729-dc898ae08996/arr age race.aspx).