“A New Tool for Employment Discrimination Claims”
One of the most common concerns for employers is ensuring the fair and equal treatment of their employees. Employers expend a great deal of effort and resources to ensure that they have legally compliant workplace policies and handbooks that guarantee employees equal opportunity in the workplace. Unfortunately, these policies are carried out by supervisors and managers who may, unintentionally or, in some egregious cases, knowingly, discriminate against certain employees.
Employees who feel that they have been treated unequally in the workplace generally file claims of discrimination with their state human rights agencies or with the Equal Employment Opportunity Commission. These agencies enforce both state and federal nondiscrimination laws; at the EEOC level, the primary focus of the EEOC in discrimination cases is Title VII, which specifically prohibits discrimination in employment regardless of whether the discrimination is knowing and intentional or simply a result of policies that are neutral on their face.
A recent Texas court decision has demonstrated the limitations of Title VII in terms of providing a comprehensive recovery for employees who have been the victims of discrimination. In Yarbrough, et al. v. Glow Networks, Inc., CIVIL 4:19-CV-905-SDJ (E.D. Tex. Apr. 18, 2022), a group of ten plaintiffs were awarded more than $70 million in damages from their employer for intentionally discriminating against them. The basis for the claim was the company’s practice of segregating African-American or Black employees into specific work areas and watching them on surveillance cameras. These employees, who were subject to such scrutiny, were then counseled or disciplined for checking their phones at work while other employees who were not part of this group did not receive similar treatment. Additionally, promotional opportunities were denied the group of plaintiffs and they were laid off in greater numbers than other employees, despite better or more efficient work records.
What makes this case significant is that the group of plaintiffs in this action did not sue their employer under Title VII of the Civil Rights Act, but rather they brought an action against the company under Section 1981, a federal statute which prohibits intentional discrimination in employment based on race. The difference between the two statutes is the extent to which they prohibit discrimination – Section 1981 is limited to intentional discrimination, while Title VII also recognizes and prohibits discrimination that results in a “disparate impact” but is not viewed as intentional. Section 1981 only applies to discrimination on the basis of race, while Title VII includes a number of other protected categories, such as gender and religion. The other, more important distinction between the two statutes, which is illustrated by the results of the Yarborough case, is the type of damages that can be awarded.
Title VII caps damages that can be recovered by plaintiffs at $300,000 for both compensatory and punitive damages; Section 1981 does not have such a cap. Additionally, a Title VII claim can only be pursued after the plaintiff has exhausted all of its administrative remedies, meaning that a lawsuit cannot be filed until after the plaintiff has filed a claim with the EEOC. Title VII also has a shorter statute of limitations period than Section 1981 – 300 days to file an EEOC charge versus four years to commence a lawsuit under Section 1981.
What does this mean for employers? The implementation of legally compliant policies is an important defense against employee claims of discrimination. Training of supervisors and managers in the application of these policies is necessary to create a respectful work environment where employees are treated equally and are not subject to workplace practices or conduct that are discriminatory. The facts of the Yarborough case were quite striking – the group of employees who successfully sued under Section 1981 were treated very differently from others in the workplace and were subject to camera surveillance and other blatantly discriminatory treatment. While Section 1981 only applies to intentional discrimination on the basis of race, the wrong facts can create a legitimate cause of action under the statute.
Managers and supervisors who get frustrated at work and treat employees differently or who make inappropriate comments regarding someone’s race or background are a liability. A pattern of poor judgment and inappropriate comments or treatment of specific employees could form the basis for a legitimate Section 1981 claim, opening the employer up to a great deal of liability. The best way to manage this risk is through training, training and more training. Additionally, human resources professionals need to support managers and supervisors, not by agreeing with their methods, but by providing crucial and critical feedback when necessary. Creating a positive and supportive work environment that provides equal opportunity for all is a shared responsibility at all levels of the organization. myHRcounsel can assist you in creating the policies and procedures necessary to support such an environment and help you to ensure that your managers and supervisors receive appropriate training to consistently and effectively apply those policies and procedures.
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