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Racial Slur at Chevron Sparks Outrage

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OtaPhoto2SAN FRANCISCO, CA — Chevron Corporation’s multi-million dollar “Human Energy” advertising campaign touts how much Chevron values people.  Chevron’s website promotes the “Chevron Way” – the company’s commitment to complying with the law and placing “the highest priority on the health and safety of our workforce.”

The reality for John Suzuki, who worked at Chevron for over 35 years, was much different.  An award-winning patent liaison in Chevron’s Law Department in Richmond, CA, Suzuki was forced to take early retirement this month rather than risk his health by returning to work under a supervisor who harassed and threatened him, and called him a “stupid Jap.”

Suzuki wanted to continue working at Chevron, but the company refused his doctors’ directives that he must be moved to a different department or else he would be at high risk of having a heart attack.

“Stupid Jap” Slur

The doctors had diagnosed Suzuki as being at high risk of another heart attack after he had at least two episodes of severe chest pains following incidents in which his supervisor, Alan Klaassen harassed him by yelling at him, making false accusations and threatening him.

After one such incident in January 2008, Suzuki went to his doctor, who told him that he had to reduce his workload or else he might have a heart attack.  When Suzuki told Klaassen and a manager, Frank Turner, what his doctor said, Klaassen and Turner laughed at Suzuki.

Things came to a head in August 2009 when Klaassen again yelled at Suzuki, waved his fist in his face, threatened him and falsely blamed him for problems in the work.  Klaassen also called Suzuki a “stupid Jap.”

Use of racial slurs by supervisors on the job violates federal and state anti-discrimination laws and laws prohibiting hostile and abusive work environments.  As one federal appeals court noted in 1993, “Perhaps no single act can more quickly ‘alter the conditions of employment and create an abusive working environment’ . . . than the use of an [unambiguous] racial epithet . . . by a supervisor….”

Following the August 2009 incident, Suzuki again suffered severe chest pains.  His doctors put him on medical leave and have been treating him since then.  They told Chevron that he could return to work only when he was taken out of his hostile work environment and  moved to a different department.

Chevron categorically refused to consider moving Suzuki to a different department.  If Suzuki did not return to his department and his supervisor Klaassen, he faced termination, Chevron told him.

Suzuki got an attorney, John Ota of Alameda, CA, who pointed out to Chevron that under California law, the company must separate Suzuki from Klaassen, at the very least until Chevron did a fair and thorough investigation of Suzuki’s charges that Klaassen had insulted him with a racial epithet and otherwise created a hostile work environment.

Investigation or Cover-up?

Demanding that Suzuki return to work under Klaassen before Chevron had even investigated the matter assumed that Klaassen would be cleared, Ota noted, an indication that  Chevron had no intention of conducting a fair and objective investigation as required by law.

Chevron refused to budge.  Faced with termination and the possible resulting loss of his retirement benefits, Suzuki reluctantly chose early retirement on February 1.

Meanwhile, Japanese American and Asian American organizations, disturbed about Suzuki’s situation, began contacting Chevron to express their concerns.

Richard Konda, Executive Director of Asian Law Alliance in San Jose wrote Chevron on January 12, stating that it was “highly inappropriate and insensitive” for Chevron to demand that Suzuki return to work under Klaassen before completing its investigation.

Patty Wada, Regional Director of the Japanese American Citizens League (JACL) Northern California-Western Nevada-Pacific District, said in a  January 22 letter that she was appalled to hear that Suzuki had been subjected to racial slurs by his supervisor.

Under pressure, Chevron hired an outside Japanese American attorney, Susan Kumagai, to investigate Suzuki’s charges.  On her website, Kumagai describes herself as a specialist in “representing management” against discrimination charges.

Suzuki asked Kumagai and Chevron how many such investigations Kumagai had done in the past and in how many of those investigations, if any, she had concluded that a hostile work environment existed.  Neither Kumagai nor Chevron responded to these questions.

Not surprisingly, Kumagai conducted a quick investigation and concluded that none of Suzuki’s charges could be substantiated.  Chevron informed Suzuki of these results on February 16, but refused to provide him with a copy of Kumagai’s report.

In her hasty effort, Kumagai failed to even talk to some witnesses Suzuki said could confirm that he told them about Klaassen’s racial slur soon after it happened.  Because in this, as in many other harassment cases, there were no witnesses to the actual harassment, such corroborating witnesses are often crucial to verifying the victim’s account of what happened.

The failure to interview corroborating witnesses, hiring as the investigator an attorney who defends management for a living, and Chevron’s refusal to provide Suzuki with a copy of the investigation report – these are all “signs pointing to a cover-up,” not a fair and objective investigation, says Ota.

Letter Writing Efforts

Suzuki is continuing to ask organizations to write Chevron on his behalf.  What is important to him, he says, is “the principle of the matter – racial remarks like this cannot be tolerated.”

The points he wants organizations to make in their letters to Chevron are first, that Chevron conduct a fair and thorough investigation of his charges, an investigation by someone who has a history of doing evenhanded investigations, not by a management defense attorney.

Second, Suzuki wants Chevron to provide him with Kumagai’s investigation report, and also to provide the report when a fair and thorough investigation is completed.

Last, Suzuki asks that Chevron fire Klaassen if it finds that Klaassen did call Suzuki a “stupid Jap” and that Suzuki be allowed to return to work at Chevron in a different department.

Leaders of Nikkei for Civil Rights and Redress (NCRR) in Los Angeles wrote to Chevron on February 10.  Paul Osaki, Executive Director of the Japanese Community and Cultural Center of Northern California sent Chevron a letter on February 19.

Other organizations in Los Angeles, San Jose and San Francisco have also agreed to write to Chevron.
Those interested in contacting Chevron should write to: John S. Watson, Chief Executive Officer, Chevron Corp., 6001 Bollinger Canyon Road, San Ramon, CA 94583.

About the Author John Ota is a solo employment attorney in Alameda, CA.  He has been representing employees for over 11 years in discrimination, retaliation, harassment, wrongful termination, and overtime pay cases.  He is a member of the National Employment Lawyers Assoc. and the California Employment Lawyers Assoc.


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Objections to Kodak’s Proposed Race Discrimination Class-Action Settlement

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Image: Marcia McCormickIn 2004, a group of Black workers of Eastman-Kodak filed a class action against the company, alleging widespread discrimination in pay and a failure to promote on the basis of race. A second class action was filed by another group of workers in 2007. The two classes together consist of about 3000 past and current employees. This past July, the company proposed a $21.4 million dollar settlement with the class–with payouts between $1,000 and $75,000 for individual class members. Magistrate Judge Jonathan Feldman (W. D. N.Y.) held a hearing Friday on the fairness of the proposed settlement, and will hold another on November 5. At Friday’s hearing, several class members objected that the payouts were too low, that the attorneys were getting too much of the award, and that class members who left the company before 1999 would be excluded.

Some examples of the unfairness of the award include that one decades-long employee would be awarded $1000 while her daughter, employed for only 11 months, would be awarded $3000. For more details see news reports here and here.

Despite this example, it’s hard to predict without knowing more what the judge will likely rule on whether the settlement is fair overall. In addition to the money, the company promised to improve its diversity training for supervisors and hire an industrial psychologist and two labor statisticians to review its pay and promotion policies and to recommend improvements. As Jason Bent recently suggested, having an external monitor to report to the court and some sort of ongoing supervision would be even better.

This article originally appeared in Workplace Prof Blog on October 24, 2009. Reprinted with permission from the author.

About the Author: Marcia L. McCormick joined the SLU LAW faculty in 2009. Her scholarship explores the areas of employment and labor law, federal courts, and civil rights, broadly defined. She is also a co-editor and contributor to Workplace Prof Blog, which provides daily information on developments in the law of the workplace and scholarship about
it.


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Zimmer on Ricci

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Mike Zimmer (Loyola), co-author of the leading casebook on employment discrimination and friend of the blog has provided these thoughts on the Supreme Court’s Ricci decision from yesterday.

1. The Holding. The defendants’ decision to not use test results because their use would have meant that no African-American and only two Hispanics, who made up over half of the testtakers, would be promoted was intentional disparate treatment discrimination against the white testtakers who would have been promoted if the test results had been used. That the adverse impact of the test results amounted to a prima facie case of disparate impact discrimination was not a defense to a disparate treatment case unless the employer has a strong basis in evidence to believe that it will be liable for disparate impact discrimination.

2. A Procedurally Unusual Decision. The district court, affirmed by the court of appeals, had granted summary judgment for the defendants. Not only did the Supreme Court reject the summary judgment for the defendants but found that plaintiffs were entitled to summary judgment. That means that the Court found that no material facts existed that would justify a trial. The four slip opinions run a total of 89 pages; 31 pages – 38% of the total — deal with relatively straight forward recitation of facts, most of which are quite constested.  Many more deal with application of facts to law, again with most applications hotly contested. Reading this suggests that the Supreme Court has taken upon itself the role of a trial court.

3. Acting When the Race of Those Affected is Intentional Discrimination. The key factual finding of the Court is that: “All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race – i.e., how minority candidates had performed compared to white candidates. . . . Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. . . . [T]he city made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.”

Justice Kennedy takes an enormous leap from the first conclusion – that the City acted because it knew the “statistical disparity based on race”—to his second – that it rejected the test “solely because the higher scoring candidates were white.”  In all the pages of factual recitation and application, there is simply no reference to any evidence that the sole cause of the decision was because using the test results would benefit whites. Is there no difference between intending not to disadvantage African-American and Hispanic candidates and intending to discriminate against the white candidates?

When the Civil Service Board made its decision, it only knew what the racial distribution and therefore the potential disparate impact if the test results were used. It did not know the identity of any of the testtakers. Therefore, it appears that an employer conscious knowledge of the race of those affected by its decisions suffices to make out intentional disparate treatment discrimination. This appears to be a tremendous change in the law.  For example, in Justice O’Connor’s concurrence in Price v. Waterhouse, she indicated that, “Race and gender always ‘play a role’ in an employment decision in the benign sense that these are human characteristics of which decisionmakers are aware and may comment on in a perfectly neutral and nondiscriminatory fashion.”

Justice Alito is convinced that, because an important participant in the political process was an African-American preacher, the decision of the CSB was “because of race” as a matter of law. Justice Ginsburg argues that the decision may have been made “because of politics” and not race since the white firefighters and their union were vociferous advocates for using the test. The decision may have been because of race or because of politics or because of some of each. Doesn’t this suggest a factual question that deserves a trial?

4. Should the African-American and Hispanic Testakers Claim Disparate Treatment Discrimination? Suppose that New Haven now uses the results of the tests and promotes some white firefighters. Because the City knew the race of those promoted, was that intentional discrimination against minority testakers who were not promoted? If not, why not? Is using the test results to promote people different from deciding not to use them?

The Supreme Court has been edging toward establishing a color-blind standard for equal protection, see Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S.Ct. 2738 (2007) (plurality opinion), and Ricci appears to import that into Title VII. These decisions involve challenges by whites to the use of race in a way that gives advantages to minority group members or, as here, removes an absolute impediment to the advancement of African-Americans and Hispanics. If a color-blind standard can be used by white plaintiffs, why can’t these minority firefighters rely on it?

5. Is Proof of Intent to Discriminate Reduced to Proving the Defendant Knew the Race of the Affected Individuals? Is racial consciousness, when acted upon, the same as acting with an intent to discriminate? If so, Ricci revolutionizes discrimination law. Assume an African-American applies but is rejected for a job after an interview. Does she establish defendant’s liability by getting the defendant’s interviewer to admit that she was conscious of the fact that the plaintiff is black?

6. The Strong Basis in Evidence Justification. In United States v. Board of Educ. of the Township of Piscataway, 91 F.3d 1547 (3rd Cir. 1996) (en banc), cert. dismissed, 522 U.S. 1010 (1997), the court had imported equal protection analysis into Title VII’s treatment of affirmative action. Does the Court’s adoption of the strong basis in evidence test effectively implement that importation?  Only Justice Ginsburg in dissent puts this decision into context with the Title VII affirmative action decisions to criticize this decision. Are these affirmative action decisions in jeopardy now?

7. The “Q” Word Strikes Again. Is the fear that employers would have an incentive to use racial quotas what drives this decision?

8. Why Isn’t There Strong Support for Disparate Impact Liability? The Court concluded that, “The racial adverse impact here was signicant, and . . the City was faced with a prima facie case of disparate-impact liability.” The Court then minimizes what that means: “[A] prima facie case of disparate-impact liability – essentially a threshold showing of a significant statistical disparity and nothing more – is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results.”  Does this undermine the significance that this prima facie showing shifts both  the burden of proof and of persuasion to the defendant?  Is the Court attempting to reinstate Wards Cove?

9. Was the Test Job-Related and Consistent with Business Necessity as a Matter of Law?  The written examination part of the test asked questions based on the testtakers ability to memorize extensive documents. Under the approach of the EEOC Uniform Test Guidelines as well as professional test standards, what IOS did was to construct a test that was supposedly content validated, i.e., that it was a sample of the job. While IOS supposedly did a job analysis, neither taking written or oral exams were involved in the jobs of lieutenant or captain in the fire department.  Nor is there any indication that memorization and recall of documents played any role at all in the jobs for which the test was to be used. The use of “assessment centers” where testtakers play the role that replicates the actual job can be content validated as job samples. Isn’t there at least a question of fact whether the test that was used was not job-related and not consistent with business necessity?

10. Was Section 703(h) Test Provision Superseded by the 1991 Civil Rights Act? The Court does not address the jurisprudence associated with the test exception in original §703(h). Has the Court decided sub silentio that this provision and its underlying jurisprudence has been repealed when Congress codified disparate impact law in new § 703(k)?

11. Were There No Less Discriminatory Alternatives as a Matter of Law? The record showed alternatives that were less discriminatory – simply altering the ratio of written to oral scores appeared to have reduced discriminatory impact in Bridgeport, using “assessment centers” or altering the “rule of three” to a banding approach – all were alternatives that could have been adopted instead of the test that was used.  The Court appears to assume that, because it was too late to adopt any of these alternatives to resuscitate this test, they could not count as alternatives. But, in fact, the City could consider these precisely because it had decided not to use the results of this test.

12. Should the Minority Testtakers Claim Disparate Impact Discrimination? Assuming the City would now use the test results, should the African-American and Hispanic testtakers bring a disparate impact claim? With the Supreme Court deciding as a matter of law that the test was job-related and consistent with business necessity and that there were no less discriminatory alternatives available, is there anything left to contest?

13. Empathy for Whom? With the statement by President Obama that he seeks to appoint Justices who have empathy, what does Ricci suggest about empathy? Justice Kennedy concluded that, “Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. . . . [O]nce [the test process] has been established and employers have made clear their selection criteris, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race.” Nothing in any of the opinions suggest that the employer had committed itself in advance to use the test results no matter what they might be. Is the Court suggesting that the testtakers had some sort of contractual based right to have the test results used? The last part – about expectations concerning race – would appear to undermine such a contractual claim. However, what about the expectations that employers would not use employment practices that cause a disparate impact? Justice Ginsburg puts the context of this case into the larger frame of the longstanding discrimination minority firefighters have faced and the use of the disparate impact theory to attack their exclusion. Doesn’t this decision defeat their expectations in order to satisfy the expectations of the white testtakers?

14. Is This 1989 Redux? It has been twenty years, but has a new conservative majority in the Roberts Court been able to undermine Title VII just as the Rehnquist Court majority did then? Will Justice Ginsburg’s prediction that this decision will not last prove true?  Will this new majority take the step argued by Justice Scalia to embed Ricci in the Constitution by striking down disparate impact analysis as unconstitutional?

About the Author: Mike Zimmer is a law professor at Loyola University Chicago.  One of his main areas of concentration, which includes co-authoring an Aspen casebook, is employment discrimination. He graduated from Marquette Law School, clerked for Judge Fairchild on the 7th Circuit, worked at Foley & Lardner and have taught at a good number of law schools. Zimmer joined the Loyola faculty after 30 years at Seton Hall Law School.

This article originally appeared in Workplace Prof Blog on June 30, 2009. Re-printed with permission by the author.


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