Workplace Fairness

Menu

Skip to main content

  • print
  • decrease text sizeincrease text size
    text

WALMART, INC. TO PAY $20 MILLION TO SETTLE EEOC NATIONWIDE HIRING DISCRIMINATION CASE

Share this post

Retail Giant to Cease Physical Abilities Testing Which Disproportionally Excluded Female Order Filler Applicants, Federal Agency Charged

LOUISVILLE, Ky. – Walmart, Inc. will pay $20 million, stop using a pre-employment test, and furnish other relief to settle a companywide, sex-based hiring discrimination lawsuit filed by the U.S. Equal Employ­ment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s lawsuit, Walmart conducted a physical ability test (known as the PAT) as a requirement for applicants to be hired as order fillers at Walmart’s grocery distribution centers nationwide. The EEOC said the PAT disproportionately excludes female applicants from jobs as grocery order fillers.

This alleged conduct violates Title VII of the Civil Rights Act of 1964, prohibits employment discrimination based on sex, including the use of tests administered to all applicants and employees regardless of sex but that cause a discriminatory effect or impact on persons of a particular sex or any other demographic category. Employers using such tests must prove the practices are necessary for the safe and efficient performance of the specific jobs. Even if this necessity is proven, such tests are prohibited if it is shown there are alternative practices that can achieve the employer’s objectives but have a less discriminatory effect.

The EEOC filed suit in the U.S. District Court for the Eastern District of Kentucky, London Division. (EEOC v. Walmart, Inc., Case No. 6:20-cv-00163-KKC) on Aug. 3, 2020, after first attempting to reach a settlement through its prelitigation voluntary conciliation process. The parties reached agreement and filed a joint motion to approve a consent decree that same day. The motion was approved by the court and the consent decree was entered on Sept. 9, 2020.

The consent decree requires Walmart to cease all physical ability testing currently being used for purposes of hiring grocery distribution center order fillers. The decree also requires Walmart to pay $20 million into a settlement fund to pay lost wages to women across the country who were denied grocery order filler positions because of the testing.   

Michelle Eisele, EEOC Indianapolis district director said, “One of the EEOC’s six national priorities is eliminating barriers in recruitment and hiring. Employers need to ensure their testing and screening practices do not discriminate against any group.”

“The parties were able to reach an early resolution of this case due to Walmart’s willingness to engage in settlement discussions. Distribution center jobs provide good career opportunities for women when sex-based barriers to hiring for those jobs are removed,” said EEOC Regional Attorney Kenneth L. Bird.

“Walmart operates 44 grocery distribution centers nationwide. Elimination of the PAT will allow more women to obtain a relatively high-paying entry-level position at one of these centers – a necessary first-step toward advancement,” added EEOC Senior Trial Attorney Aimee L. McFerren.

The Louisville Area Office of the EEOC is part of the EEOC’s Indianapolis District, with jurisdiction over Indiana, Kentucky, Michigan, and parts of Ohio.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

This blog was originally published by the U.S. Equal Opportunity Employment Commission on September 10, 2020. Reprinted with permission.


Share this post

California Assembly Bill 9 Expands the Statute of Limitation for Discrimination Claims

Share this post

Image result for patrick r kitchin

Statutes of limitations, are designed to ensure that an alleged victim does not delay in making a claim for damages or other relief.  A long delay can deprive the defendant of the evidence necessary to fight the claim. By failing to act with reasonable diligence to pursue a claim, relevant document may be lost and witnesses’ memories may fade.

With respect to claims under the California Fair Employment and Housing Act (“FEHA”), employees must file a complaint with the Department of Fair Employment and Housing (“DFEH”) and obtain a right-to-sue letter before filing in court.  Until January 1, 2020, employees had one year to initiate this process to exhaust administrative remedies.  Following the passage of California Assembly Bill 9, which amends Government Code sections 12960 and 12965, employees now have three years to file these claims with the DFEH.  But, AB 9 is not retroactive.  Old claims are not revived by the new law.

What Does AB 9 Do for Employees?

AB 9 represents a significant expansion of employee rights in California. The one-year statute of limitations will continue to apply to claims made under the Unruh Civil Rights Act, Ralph Civil Rights Act of 1976 and under Civil Code provisions addressing “Blind and other Physically Disabled Persons.”

AB 9 also includes four expansions of the three-year filing deadline for cases brought under the FEHA.

  • First, the statute of limitations is tolled (or temporarily stopped) for up to 90 days following a person’s discovery of the facts of the alleged discrimination.
  • Second, the statute is tolled for up to one year in situations where one first discovers the identity of the employer after three years have passed.  Thus, for example, the true employer might be disguising its identity within a maze of companies.  AB 9 provides a limited tolling under such circumstances to permit an employee to substitute the actual employer into the claim.
  • Third, the statute is tolled for up to one year in cases brought under Civil Code § 51.7 (Ralph Civil Rights Act of 1976) from the date the employee learns the identify of the person liable for the discrimination.
  • Fourth, the statute is tolled for up to one year after the person aggrieved by the discrimination reaches their majority (18 years).

How Does Exhaustion of Administrative Remedies Under the FEHA Work?

Filing a discrimination complaint with the DFEH requires the employee to complete an online form that identify themselves, their employer and the violations they allege occurred.  A failure to include all of the claims available or to sufficiently describe the claims being asserted can deprive the employee of the right to pursue the claims at the DFEH or in court.

After completing the complaint form, the employee is asked whether they wish to have the DFEH investigate the claims or to issue an immediate right-to-sue letter.  Generally, an employee should not ask for a right to sue letter unless they are represented by an attorney. Once the employee obtains a right-to-sue letter, the DFEH will stop any investigation.  The employee has one year to file a lawsuit based on the allegations set out in their complaint.

AB 9 is Not Meant to Encourage Delays

Although an employee in California now has three years to file a complaint with the DFEH, an employee being subjected to unlawful discrimination, harassment or retaliation at work should not delay too long to challenge those unlawful conditions.

Unreasonable delays can be used by the employer to argue that conditions must not have been very bad if the employee continued to work there.  In addition, evidence of the discrimination can be lost to time as witnesses move on to new places and new jobs.

Finally, delay often means that the employee will continue to labor under conditions that are intolerable.  While filing a complaint with the DFEH is not a fix-all solution to discrimination at work, initiating the complaint process can lead to positive changes there.  It is also a way for an employee to take back some of the power they have lost in the hostile environment.

Reprinted with permission.

About the Author:  Patrick R. Kitchin is the founder of Kitchin Legal APC, a San Francisco, California employment law firm. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. Patrick also represents employers requiring guidance in California employment law. Patrick is a graduate of The University of Michigan Law School and rated AV-Preeminent by Martindale-Hubbell, its highest ranking for legal knowledge, skill, experience and ethics.


Share this post

Dr. King’s Radical Revolution Of Values

Share this post

RichardEskowThis Monday, the nation celebrates Martin Luther King, Jr. Day. If he hadn’t been murdered, he would be 91 years old. How would Dr. King view today’s activists?

 

The words to his “I Have a Dream” speech will be repeated from podiums and in classrooms across the country. But many of the people repeating these words have never heard other King quotes, like this one:

“I am convinced that if we are to get on to the right side of the world revolution, we as a nation must undergo a radical revolution of values.”

King’s Answer

To those who condemn idealism, who preach the quiet cynicism of self-limiting “pragmatism” and insist it’s “how the world works,” Dr. King had an answer: He was, in his own words, “maladjusted.”

In a 1963 speech at Western Michigan University, he said:

There are certain things in our nation and in the world (about) which I am proud to be maladjusted… I say very honestly that I never intend to become adjusted to segregation and discrimination. I never intend to become adjusted to religious bigotry. I never intend to adjust myself to economic conditions that will take necessities from the many to give luxuries to the few. I never intend to adjust myself to the madness of militarism, to self-defeating effects of physical violence.

But in a day when sputniks and explorers are dashing through outer space and guided ballistic missiles are carving highways of death through the stratosphere, no nation can win a war. It is no longer the choice between violence and nonviolence. It is either nonviolence or nonexistence…

Dr. King also said: “This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy.”

“We must… realize,” he continued, “that the problems of racial injustice and economic injustice cannot be solved without a radical redistribution of political and economic power.”

A Radical Spirit

In other words, Dr. King was a radical.

A few years ago, invocations of Dr. King’s radical spirit were hard to find. They’re more common today, but even the best-intentioned of these pieces tend to place his radicalism in the past tense. That’s a mistake. Dr. King is gone, but his ideals live on.

We can never be sure how Dr. King might view current events, but he can still guide us through his rich record of words and deeds.

Here are six ways that the revolutionary spirit of Dr. King lives on.

Nonviolent Protests

Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored … there is a type of constructive, nonviolent tension which is necessary for growth.
– Letter From a Birmingham Jail, 1963

Some politicians who invoke Dr. King this holiday will try to reduce his memory to an emoji they can paste onto their platitudes. But Dr. King was a troublemaker, in the best sense of the word. He knew what it meant to create tension, and discomfort, and disharmony.

While he lived, Dr. King was the target of almost unimaginable hatred and condemnation. It rained down on him from the streets of Southern towns and the corridors of FBI headquarters, from the boardrooms of bus companies and the booths of Boston diners.

Dr. King preached communication, but experienced excommunication – from that cozy world of ‘insiders’ who may argue but will never risk their lives or careers for higher ideals.

Would Dr. King have supported the actions of NFL protesters and movements like Black Lives Matter? It’s hard to imagine otherwise. Their actions make some people uncomfortable, but he wouldn’t have been bothered by that. Protests, he wrote, “merely bring to the surface the hidden tension that is already alive.”

The attacks on BLM protesters and the blackballing of Colin Kaepernick would feel very familiar to Dr. King and his associates. It’s impossible to believe he would not see their struggle as his own.

As for their motivations, Dr. King said this in his “I Have a Dream” speech: “There are those who are asking the devotees of civil rights, ‘When will you be satisfied?’ We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality.”

The Struggle for Economic Justice

“Call it democracy, or call it democratic socialism, but there must be a better distribution of wealth within this country for all God’s children.” 
– Negro American Labor Council, 1961

King’s spirit also lives on in the movement for economic justice.

A 2014 Princeton study which has since been validated confirms that the United States has become an oligarchy, for all intents and purposes.  Multinational corporations are dictating the rules of employment and trade. The ultra-rich accumulate more and more of our national wealth and income, as the middle class dies and 40 million Americans – including one out of every five children – lives in poverty.

Corporations seek to inoculate themselves from being held accountable by promoting what they call “corporate social responsibility.”  A few people may be helped, but these programs are little more than coins flung at beggars.

Dr. King would probably not be impressed.  He would probably see more of himself in the work of groups like FED UP who are fighting for economic justice.

Expanding Access to Health

Dr. King also told the Medical Committee for Human Rights in 1966, “Of all the forms of inequality, injustice in health care is the most shocking and inhumane.”

The provenance of this quote was questioned for years, until attorney and editor Amanda Moore tracked it down and confirmed it.  Dr. King said it less than a year after Medicare was passed into law.

Given what we know of his values, is it unreasonable to believe that Dr. King would stand with those groups that are fighting to ensure that Medicare’s protections are available to every American? And can there be any doubt that he would be committed to expanding Social Security, ensuring decent vacation and family leave benefits for all workers, and taking other steps to expand the social safety net?

The Fight for Workers’ Rights

The two most dynamic and cohesive liberal forces in the country are the labor movement and the Negro freedom movement. Together we can be architects of democracy.”
– Address to the Fourth Constitutional Convention of the AFL-CIO, August 1961

Dr. King’s spirit lives on in the most progressive and transformative elements of the labor movement.

He understood that inequality, “the glaring contrast of poverty and wealth,” could not be defeated without organized labor. Dr. King didn’t hesitate to challenge the labor movement when unions practiced racial discrimination.  But he was a fierce advocate for labor rights. He was in Memphis on behalf of striking sanitation workers, in fact, on that terrible night when bullets took his life.

Dr. King understood that the fight for civil rights was closely connected with the fight for workers’ rights. “Negroes in the United States read this history of labor and find that it mirrors their own experience,” he told the AFL-CIO. “We are confronted by powerful forces, telling us to rely on the goodwill and understanding of those who profit by exploiting us.”

An End to Militarism

“We are called to speak for the weak, for the voiceless, for the victims of our nation, for those it calls ‘enemy,’ for no document from human hands can make these humans any less our brothers.”
– Beyond Vietnam, 1967

His spirit lives in the groups fighting to end our country’s campaign of permanent war, and in the brave men and women who work to end the illegal and immoral practices of our military and intelligence services.

Dr. King said this, too, in his 1967 Christmas sermon on peace:

“… when we say Thou shalt not kill, we’re really saying that human life is too sacred to be taken on the battlefields of the world. Man is more than a tiny vagary of whirling electrons or a wisp of smoke from a limitless smoldering.”

He undoubtedly would have opposed the extrajudicial drone killings ordered by our current president and his two predecessors, and the torture campaigns orchestrated by the CIA.

This element of his spirit does not live on amongst the 117 Democratic members of the House, and the  41 Democratic senators, who joined their Republican colleagues in voting for an extravagant $770 billion boost to what was already the largest military budget in human history. They include some people who have been widely characterized as “progressive heroes.”

These politicians stand rebuked by the words Dr. King spoke to the National Labor Leadership Assembly for Peace in 1967:

Congress appropriates military funds with alacrity and generosity. It appropriates poverty funds with miserliness and grudging reluctance. The government is emotionally committed to the war. It is emotionally hostile to the needs of the poor.

The New Poor People’s Campaign

“A true revolution of values will soon look uneasily on the glaring contrast of poverty and wealth.”
– Beyond Vietnam, 1967

Dr. King’s spirit surely lives on in the recent revival of his Poor People’s Campaign, the project he was focused on at the time of his murder in 1968. This initiative, led by Revs. William Barber and Liz Theoharis, plans a “Poor People’s Assembly and March On Washington” on June 20, 2020,  to protest King’s “triple evils” of racism, poverty and militarism, and ecological devastation. This new campaign describes itself as “A National Call for Moral Revival.”

The original Campaign had a highly progressive economic agenda.  It called for $30 billion to be spent every year on anti-poverty programs. That would amount to roughly $213 billion per year in today’s dollars, or $2.13 trillion over a ten-year period. That may sound astronomical, but it’s not much more than Congress just gave away in tax breaks skewed toward the rich.

King’s Campaign was scheduled to begin with the construction a shantytown on the national Mall in Washington, DC, followed by a civil disobedience and mass arrests, and concluding with a nationwide boycott of major corporations and shopping areas to pressure business leaders to support its goals.

The original Poor People’s Campaign also called for a program of guaranteed employment and guaranteed income for all Americans, as well as the construction of 500,000 low-cost housing units each year until all slums were eliminated.

Jobs, income and housing for all. King’s vision is as radical and urgent today as it was fifty years ago.  A society dominated by the wealthy, one that has given so much to the few for so long, can surely do this much for the many.

Dr. King’s spirit lives on in the new Poor People’s Campaign, and in every place radicals gather to change the world.

Our only hope today lies in our ability to recapture the revolutionary spirit and go out into a sometimes hostile world declaring eternal hostility to poverty, racism, and militarism.

This is an updated version of a blog OurFuture publishes every year in honor of Dr. King.

This article originally appeared at Ourfuture.org on January 20, 2020. Reprinted with permission.

Richard Eskow is a Senior Fellow with the Campaign for America’s Future and the host of The Zero Hour, a weekly program of news, interviews, and commentary on We Act Radio The Zero Hour is syndicated nationally and is available as a podcast on iTunes. Richard has been a consultant, public policy advisor, and health executive in health financing and social insurance. He was cited as one of “fifty of the world’s leading futurologists” in “The Rough Guide to the Future,” which highlighted his long-range forecasts on health care, evolution, technology, and economic equality. Richard’s writing has been published in print and online. He has also been anthologized three times in book form for “Best Buddhist Writing of the Year.”


Share this post

Discrimination Based on Hair Styles is Now Illegal Under California Law

Share this post

Image result for patrick r kitchinThe Public Shearing of Andrew Johnson’s Dreadlocks

In December 2018, a video showed a white high school trainer in New Jersey cutting dreadlocks from 16-year old African American wrestler, Andrew Johnson. The lead referee had instructed him, ‘Cut your hair in the next 90 seconds, or you will be banned from today’s competition.’

The image is shocking: a white woman roughly cutting a black teenager’s hair in front of an auditorium filled with parents and children.  Andrew stared straight ahead.  The school initially argued haircut was needed for the safety of the wrestlers in accordance with standard rules about wrestlers’ hair length.

The justification for the act quickly was overpowered by its dreadful significance.  In response to the public outcry, the state attorney general’s office suspended the referee for two years, and ordered educators in all high schools in New Jersey to undergo implicit bias training.

A Conversation Begins

Public reactions to the video ranged from outrage to denial.  According to an April 17, 2019 Washington Post article about Mr. Johnson, residents of his hometown, in New Jersey had mixed reactions too.

Many who attended the match that night, saw the cutting of Andrew’s dreadlocks as an act of racial intolerance.  Others blamed Andrew himself for failing to follow hair length rules applicable to all wrestlers.  Some saw the event as proof that racism in America is endemic.  Others argued it was racist to claim that the cutting of Andrew Johnson’s deadlocks was an act of racial discrimination.

California Leads the Way

The California Fair Employment and Housing Act (“FEHA”) does not lay out an exhaustive list of acts and attitudes that violate the rights of job seekers and employees.  That is part of its strength.  If gives us the flexibility to decide whether an act or process is discriminatory based on the evidence in specific cases.

Instead of relying on a limited number of examples, FEHA sets out protected categories of people and conditions. One’s race falls into one of the protected categories.  Being disabled places a person into another.  A person cannot be harassed or discriminated against based on their status as a member or one or more of these categories.

Beginning January 1, 2020, policies and practices that target hairstyles associated with race constitute acts of discrimination in both education and employment.  Known as the CROWN Act (Create a Respectful and Open Workplace for Natural Hair), Senate Bill 188 modifies the California Fair Employment and Housing Act and the Education Code.  The newly defined additional category states that discrimination based on race now includes “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”

Senate Bill 188 Expands Protections Against Discrimination in Employment and Education

California has some of the most broadly protective employment discrimination laws in the nation.  The CROWN Act adds “Protective hairstyles” as an additionally protected category under the Fair Employment and Housing Act.  SB-188 also amends the California Education Code to prohibit discrimination based on “Protective hairstyles,” which “includes, but is not limited to, such hairstyles as braids, locks, and twists.”

In a world where physical appearance continues to be employed as a weapon for denying equal protection under the law to all citizens and residents, the new law makes a powerful statement about race and ethnicity-based discrimination.  “Hair remains a rampant source of racial discrimination with serious economic and health consequences, especially for Black individuals,” the Legislature declares.

The Legislature’s Preamble to SB 188

The Legislative preamble to SB-188 makes a powerful statement about hair in the context of the history of race discrimination and toxic ethnocentrism in America.

To combat bigoted ideas that have permeated “societal understanding of professional,” the preamble states, “Workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks, have a disparate impact on Black individuals as these policies are more likely to deter Black applicants and burden or punish Black employees than any other group…, The Legislature recognizes that continuing to enforce a Eurocentric image of professionalism through purportedly race-neutral grooming policies that disparately impact Black individuals and exclude them from some workplaces is in direct opposition to equity and opportunity for all.”

Watershed Moments

The public shearing of Andrew Johnson’s dreadlocks in 2018 is another watershed moment in the history of race relations in America.  The public haircut of a black child surrounded by white adults generated discussions across our country about who we are and how we think about, and treat, others.

Bigotry is almost always accompanied by insults denigrating others based on their physical characteristics, whether it be skin or hair.  The legislative preamble to SB 188 should be required reading for every HR manager, supervisor and educator in California.

Reprinted with permission.

About the Author:Patrick R. Kitchin is the founder of Kitchin Legal APC, a San Francisco, California employment law firm. He has represented thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. Patrick also represents employers requiring guidance in California employment law. Patrick is a graduate of The University of Michigan Law School and rated AV-Preeminent by Martindale-Hubbell, its highest ranking for legal knowledge, skill, experience and ethics.


Share this post

Will The 2020 Contenders Take On Inequality?

Share this post

This blog was originally published at OurFuture.org on December 6, 2019. Reprinted with permission.

About the Author: A veteran labor journalist, Sam Pizzigati has written widely on economic inequality, in articles, books, and online, for both popular and scholarly readers. Sam Pizzigati co-edits Inequality.org. Follow him at @Too_Much_Online.


Share this post

When is a hairstyle not just a hairstyle? When it’s a pretext for discrimination.

Share this post

African Americans in particular find that their afros, cornrows and dreadlocks are held against them at school and when applying for jobs.

Employers in California no longer will be allowed to reject job candidates because they dislike their curls, coils, kinks or locks, after the governor signed a first-of-its-kind bill outlawing hair discrimination.

The new measure, signed Wednesday by Gov. Gavin Newsom (D), bans discrimination against a job candidate or school applicant for wearing natural hairstyles.

“There’s a human element to this. We don’t want to diminish people, we don’t want to demean people … We have to own up to the sins of the past,” Newsom said. “I hope that folks are paying attention all across this country.”

The bill was approved unanimously in both the California House and Senate.

The text of the measure states that throughout its history the United States has been “riddled with laws and societal norms that equated ‘blackness,’ and the associated physical traits, for example, dark skin, kinky and curly hair to a badge of inferiority, sometimes subject to separate and unequal treatment.”

The issue is a particularly fraught one for African Americans who have been expected to style their hair to conform with Caucasian norms of beauty or acceptability, especially in the workplace.

“Professionalism was, and still is, closely linked to European features and mannerisms, which entails that those who do not naturally fall into Eurocentric norms must alter their appearances, sometimes drastically and permanently, in order to be deemed professional,” the text of the legislation said.

Discrimination over her dreadlocks led Chastity Jones to fight a 10-year legal battle with an employer who fired her because she refused to get rid of the hairstyle. “It had nothing to do with the job,” she said. “It just had everything to do with my hair.”

Jones sued in 2013 for discrimination and lost wages, but her was dismissed by the court. The NAACP filed a petition last year on her behalf to the Supreme Court, but it declined to take the case.

And it has not just been a problem for workers: Last August, Louisiana sixth grader Faith Fennidy was kicked off the grounds of her Catholic school because her hair, neatly parted and swept back into braided ponytails, violated school policy.

ThinkProgress readers might also recall the case of Andrew Johnson, the high school wrestler in New Jersey who was told in December that he would have to submit to having his dreadlocks shorn off or forfeit the match.

California state Sen. Holly Mitchell introduced the anti-discrimination bill in her state, which extends the same protections that an individual would be afforded because of their skin color to their natural hairstyle and texture.

“The way the hair grows out of my head as a black woman is a trait of race,” Mitchell said, explaining the thinking behind her legislation, which has been dubbed the CROWN Act.

Reports say similar legislation is being considered in New Jersey and in New York, where a bill against discrimination on the basis of a person’s natural hair has passed both chambers of the state legislature and is awaiting Gov. Andrew Cuomo’s signature.

This article was originally published at In These Times on July 2, 2019. Reprinted with permission.

About the Author: Stephanie Griffith is a senior editor. She has worked as an editor and reporter for the Associated Press, The Washington Post, and Agence France-Presse, among other journalism gigs.

Share this post

Black Workers Say Walmart’s Background Checks Are Racially Discriminatory

Share this post

When Walmart announced in January that it was “in-sourcing” its Elwood, Illinois, distribution center, workers were cautiously optimistic.

Since it opened in 2006, the 3.4 million-square-foot warehouse has been operated by Schneider Logistics, a third-party contractor, which in turn hired workers through temp agencies. Walmart’s plan to absorb several of its outsourced warehouses nationwide meant an end to this web of subcontracting, which labor organizers charge is one of the company’s union-busting tactics.

The retail giant also announced that it would rehire as many current warehouse workers as possible, with raises in starting pay and benefits. Mark Balentine, who has performed quality assurance in the Elwood warehouse for three years, says he was offered and accepted the same position as a Walmart employee. It came with a pay bump from $16.35 an hour to $18.65.

“I was absolutely excited,” says Balentine.

But last month, just three weeks before Walmart was set to take over, Balentine says he received an e-mail informing him he was ineligible to work for the company based on the results of a criminal background check. He has a conviction for cocaine possession on his record that dates back to 1999.

Now 52, Balentine says he mentors youth leaving prison and is an ordained deacon at his Baptist church in Auburn-Gresham. He says the conviction hasn’t posed a problem for him in years.

Balentine is one of two Black workers who filed racial discrimination charges against Walmart this week, alleging that the company’s background check policies had a disparate impact on African Americans in the Elwood facility.

Between 100 and 200 other African American workers may have been affected, according to Chris Williams, an attorney with the National Legal Advocacy Network, which filed the complaint with the Illinois Department of Human Rights and the U.S. Equal Employment Opportunity Commission (EEOC). A class-action suit could follow.

Walmart says its hiring practices exceed state and federal legal requirements and provide candidates with criminal records “a meaningful opportunity to put the record in context.”

“Retaining as many existing employees as possible has always been the goal of our transition at the Elwood distribution center, and we hired hundreds of those workers,” said spokesperson Kory Lundberg in a statement e-mailed to In These Times. “We understand the importance of providing second chances and our background checks include a thoughtful and transparent review process to help ensure everyone is treated fairly.”

But the complaint alleges that the company failed to perform any such individualized review of African American workers’ eligibility, which is part of guidance on employers’ use of criminal background checks issued by the EEOC in 2012.

Instead, according to Balentine, laid-off workers were given “$250 and a slice of pizza” and told they could reapply through the same process in 60 days.

“They told me to ‘roll the dice and try again,’” says Balentine. “And I was like, ‘this is my life.’”

Lundberg said that some candidates with criminal records “were offered a position after a personalized review of their offense,” but did not provide further details by press time.

According to the complaint, “other non-African employees with criminal backgrounds have been permitted to continue working at the Walmart distribution center.”

As many as 100 million Americans have some form of criminal record that can impact their access to jobs, housing and other public services. People with felony convictions, which are most likely to result in exclusion, represent an estimated 8 percent of the overall U.S. population and 33 percent of the African American male population.

A growing number of states and municipalities have attempted to address racially discriminatory hiring through “Ban the Box” laws that bar government employers or contractors from including questions about criminal background on job applications. Twelve states also bar private employers from doing so.

But racial discrimination in the temporary staffing industry is notoriously difficult to address. A series of lawsuits in Illinois and elsewhere have accused staffing agencies of discriminating against Black workers by, among other things, requiring them to submit to criminal background checks to which other workers are not subjected.

Exclusion of workers with a criminal record is “a huge issue in the warehouse industry,” says Roberto Jesus Clack, associate director of Warehouse Workers for Justice. The Illinois-based worker center holds monthly expungement workshops and organized meetings for the group of Elwood workers.

Elwood is located in Will County, which is home to more than 300 warehouses in total and a maze of temp agencies. When workers have raised complaints about wage theft and horrific working conditions—including during a landmark 2012 warehouse strike—a maze of subcontracting has made it difficult to hold either Walmart or Schneider Logistics responsible. While insourcing could represent “a step in the right direction,” says Clack, Walmart introducing new barriers to employment is instead a step backward.

“I’m looking out for the person behind me,” says Balentine. “The 17-year-old that’s getting in trouble today and who sees what happens to me and then he decides, ‘What’s the point in changing? They aren’t going to give me a chance anyway.'”

This article was originally published at In These Times on April 25, 2019. Reprinted with permission. 

About the Author: Rebecca Burns is an award-winning investigative reporter whose work has appeared in The Baffler, the Chicago Reader, The Intercept and other outlets. She is a contributing editor at In These Times. Follow her on Twitter @rejburns.


Share this post

Trump wants to dismantle decades of discrimination protections

Share this post

The Trump administration is looking to either eliminate or severely restrict regulations designed to protect people from discrimination in a number of categories, the Washington Post reported Thursday.

The Department of Justice is asking federal agencies to assess ways to scale back regulations that allow for “disparate impact” legal challenges to discrimination.

Disparate impact refers to discrimination that occurs against a group even when there is no clear evidence of an intent to discriminate.

For example, an employer might implement a broad restriction on hiring people who have criminal records. Such a policy might not mention race at all, but because of racial disparities in the criminal justice system, it could end up leading to far more discrimination against people of color.

Disparate impact litigation would be a vehicle for challenging that policy as racial discriminatory, even if there’s no evidence that the employer put the policy in place in an attempt to give white candidates an advantage.

The approach is not new; in fact, it’s been a practice dating back a half-century to when civil rights laws were first put on the books. And litigation based on showing a disparate impact has been used to combat discrimination in just about every way, including employment, housing, education, and credit.

The administration has already demonstrated a willingness to gut this important tool for combatting discrimination.

Last month, the Federal Commission on School Safety recommended rolling back disparate impact policies in education. These policies sought to minimize the amount of punitive discipline for minor infractions, because such discipline was disproportionately applied to students of color and students with disabilities — fueling the so-called “school-to-prison pipeline.” The commission claimed without a clear explanation that allowing such discipline would somehow protect students from gun violence.

There are many inconsistencies in terms of when courts will consider disparate impact claims. For example, the Supreme Court ruled in 2015 that disparate impact claims are viable in terms of housing complaints. But there are other forms of discrimination where the Court has not guaranteed that the claims can be heard.

Tom Silverstein, associate counsel at the Lawyers’ Committee for Civil Rights, explained to ThinkProgress that where the Supreme Court has not resolved the issue, the administration will try to prohibit bringing disparate impact claims at all. Where the Supreme Court has said such claims are viable, the administration could place many limitations on them that make it far harder for them to succeed.

In that 2015 case, the Court may have upheld disparate impact claims in housing, “but there was no holding on how you prove a disparate impact claim or what the standard of proof is,” Silverstein explained. New regulations could heighten the standard for showing a causal relationship between a company’s policy and its disparate impact, or they could burden plaintiffs with having to prove that a less discriminatory policy would still serve the company’s interests. These would shift the advantage more to the company discriminating and make it harder to bring successful claims against them.

The Department of Housing and Urban Development already has indicated that it is seeking to undo its disparate impact rule, which would make it easier for insurance companies to implement policies that discriminate against minorities.

In the case of lending, the Supreme Court has not weighed in on whether disparate impact claims are viable under the Equal Credit Opportunity Act. Silverstein offered a hypothetical situation in which a company’s car purchase loans resulted in people of color disproportionately paying higher interest rates on their vehicles. “If it’s not an instance of intentional discrimination — or it is but you can’t prove that without going through discovery — it makes it harder to challenge that kind of discrimination.”

Sasha Samberg-Champion, a civil rights lawyer at Relman, Dane & Colfax, told ThinkProgress that the proposed changes are “harmful” because they will make it far harder to prove discrimination is taking place. An insurance company, for example, might be relying on a certain automated algorithm that ends up making it harder for people of color to obtain coverage, but it might not be possible to trace that algorithm back to specific individuals or any intent to discriminate.

“There may be some bad intent going on as well,” he said, “but it’s virtually unknowable when you begin investigating and begin litigation. You know there’s a bad practice that has a severe disparate impact on minority populations, and you know it’s irrational and has no justification. But you don’t know why unless they’re stupid enough to announce that they’re bigots.”

The administration’s restrictions could lead to a situation where plaintiffs basically have to find some clear evidence that a company was trying to discriminate, not just show that they happened to be discriminating. “If you make it a requirement that you prove intent, you’re making it impossible to bring litigation for practical purposes, even if in the real world there is bad intent,” he said.

There has long been a partisan divide on disparate impact litigation, with Republican presidential administrations dating back to Ronald Reagan opting simply not to pursue such cases. But completely dismantling the regulations that allow for them is a substantial change.

“This is a major attack on civil rights enforcement,” said Joe Rich, who recently retired from the Lawyers’ Committee for Civil Rights. “In the past, they would not use disparate impact, but they would not try to change the regulation. They would not try to destroy it,” he told ThinkProgress. “If you get rid of the regulation, there will be nothing to enforce.”

This article was originally published at ThinkProgress on January 3, 2019. Reprinted with permission.

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. 


Share this post

Sometimes hiring discrimination is committed by a bigot—and sometimes it’s by standardized test

Share this post

You might think that a standardized test would be a way to eliminate discrimination from job hiring—everyone gets the same questions, and everyone’s answers are graded in the same way. But you’d be wrong. In fact, some standardized tests used widely by employers looking to screen job-seekers can be instruments of discrimination, Will Evans reports. One test alone caused illegal discrimination against more than 1,000 people, according to the Labor Department:

At a California factory for Leprino Foods Co., the world’s largest producer of mozzarella cheese, WorkKeys put 253 Latino, black and Asian applicants at a disadvantage, the department found. Leprino Foods eventually agreed to pay $550,000 and hire 13 of the rejected job seekers.

At a chemical plant in Virginia, an auto parts factory in upstate New York and an engine plant in Alabama, the tests also illegally screened out minority applicants, according to Labor Department records. At a General Electric Lighting plant in Ohio and an aluminum factory near Spokane, Washington, WorkKeys unfairly hurt the chances of female applicants, officials found.

The tests didn’t adequately measure whether an applicant would be good at the job, violating civil rights protections, according to the government. The employers paid a settlement to unsuccessful applicants and scrapped the tests.

But other employers—including local and state governments in many places—continue to use tests that aren’t relevant to the jobs they’re hiring for, potentially screening out people who are qualified for the jobs they’re trying to get.

While some workers have gotten settlements for the test-based discrimination they faced, they’re a drop in the bucket. And Evans’ story includes a warning for the future:

The cases faulting WorkKeys represent just a sample of potential problems in the job market, because the government agency that brings them audits a small fraction of federal contractors each year. That office could shrink under President Donald Trump, who has called for slashing the Labor Department budget overall by 21 percent.

Of course.

This blog was originally published at DailyKos.com on May 29, 2017. Reprinted with permission.

About the Author: Laura Clawson has been a Daily Kos contributing editor since December 2006 and labor editor since 2011.


Share this post

Federal judge concludes transgender worker can sue for sex discrimination

Share this post

A federal court in Kentucky is allowing a transgender workplace discrimination suit to proceed, recognizing that mistreatment in regards to gender identity constitutes illegal discrimination on the basis of sex.

Plaintiff Mykel Mickens sued General Electric Appliances (GE) for harassment and disparate treatment in the workplace. He was not permitted to use the men’s restroom, so he had to use a facility much farther away from his work station, and he was then disciplined for how long his breaks were to accommodate that journey. Mickens also had a conflict with an employee, but though GE addressed a complaint one of his white, female colleagues had with that employee, his complaint went unaddressed. He says that when he disclosed that he was transgender to his supervisor, he was singled out and reprimanded for conduct no one else was reprimanded for, and when he reported the harassment, GE said there was nothing it could do.

Federal Chief Judge Joseph McKinley, a Clinton appointee, concluded that there was significant evidence to bring a discrimination case for race and gender discrimination. He agreed there is precedent that punishing an employee for failing to conform to gender stereotypes can qualify as gender discrimination under Title VII. “Significantly,” he wrote, “Plaintiff alleges that GE both permitted continued discrimination and harassment against him and subsequently fired him because he did not conform to the gender stereotype of what someone who was born female [sic] should look and act like.”

McKinley noted that several court cases, including G.G. v. Glouchester County School Board?—?currently before the Supreme Court?—?could impact future trans discrimination suits. In the meantime, however, “what is clear is that the Plaintiff’s complaint sufficiently alleges facts to support discrimination or disparate treatment claims based upon race and gender non-conformity or sex stereotyping.”

GE did not comment directly on the suit but reaffirmed in a statement its commitment to “creating, managing and valuing diversity in our workforce” and “ensuring that our workplace is free from harassment.”

McKinley’s ruling isn’t an automatic victory for Mickens, but it is a sign of progress for those seeking the justice system’s protection for discrimination against transgender people.

Just last week, a transgender man in Louisiana won his discrimination complaint against his employer through arbitration. Tristan Broussard involuntarily resigned from the financial services company he worked for when he was intolerably forced to “act and dress only as a female.” He was awarded more than a year’s salary as well as additional damages for emotional distress.

The Obama administration has extended protections to transgender people in various ways, including advocating for their civil rights in employment discrimination cases. Many advocates worry the Trump administration will roll back these protections and abandon support for these plaintiffs, if not take an antagonistic position against their discrimination claims.

A recent massive survey of transgender people found that 16 percent had lost a job due to being transgender, and 27 percent had either been fired, denied a promotion, or not been hired due to being transgender.

This article was originally posted at Thinkprogress.org on December 13, 2016. Reprinted with permission.

Zack Ford is the LGBT Editor at ThinkProgress.org. Gay, Atheist, Pianist, Unapologetic “Social Justice Warrior.” Contact him at [email protected]. Follow him on Twitter at @ZackFord.


Share this post

Follow this Blog

Subscribe via RSS Subscribe via RSS

Or, enter your address to follow via email:

Recent Posts

Forbes Best of the Web, Summer 2004
A Forbes "Best of the Web" Blog

Archives

  • Tracking image for JustAnswer widget
  • Find an Employment Lawyer

  • Support Workplace Fairness

 
 

Find an Employment Attorney

The Workplace Fairness Attorney Directory features lawyers from across the United States who primarily represent workers in employment cases. Please note that Workplace Fairness does not operate a lawyer referral service and does not provide legal advice, and that Workplace Fairness is not responsible for any advice that you receive from anyone, attorney or non-attorney, you may contact from this site.