Racial discrimination comes in many forms and, following a recent opinion from the Second Circuit, discrimination due to an employee’s interracial relationship is one of them.

Employment discrimination laws prohibit employers from making decisions based on race, gender, religion, disability, and certain other characteristics.  Since the passage of the Civil Rights Act of 1964, these laws have addressed discrimination based on the characteristic of the employee.  But lately there has been an increase in cases of "associational discrimination." 

Associational Discrimination 101

In this new genre of discrimination law, the focus is not on the characteristic of the employee, but on a person or persons with whom the employee associates.  In other words, let’s say that your parents were Jewish and all of their friends were Jewish but you had converted to were Christianity in college. 

And let’s say that your employer fired you–not because he thought you were Jewish, but because of your association with your Jewish friends and family.  That is an example of associational discrimination.  The discrimination stemmed not from your religion but from the religion of the people with whom you associate. 

A recent case from the Second Circuit–the first of its kind–held that associational violation occurs when an employee is fired for his interracial marriage.

Holcomb v. Iona College (2nd Cir.)

Facts of the Case

The case is Holcomb v. Iona College, decided on April 1.  Holcomb was a basketball coach at Iona College in New York. He claimed that a college official, Brennan, tried to prevent Holcom’s wife, who was Black, from attending public alumni functions , and that Brennan had made racially derogatory comments about some of the Black players. 

Another college official, Petriccone, also made offensive racial comments about Black players in the basketball program.  As the Second Circuit put it, "Colleagues at Iona testified to Petriccione’s record of what might, charitably, be called racial insensitivity. Egregiously in this respect, Petriccione is said to have referred to a Nigerian employee at the Alumni Giving Office as a ‘jungle bunny’ and an ‘African princess.’  When that member of staff applied to his office for the position of Assistant Director of Annual Giving, he remarked:  ‘[W]hat does she think she is coming from a hut in Africa and thinking she could apply for this job?’”

In addition, when Petriccione found out that Holcomb was marrying an African-American woman, he allegedly made a comment so offensive comments that it won’t be posted here. 

Iona College eventually fired Holcomb, explaining that his termination had to do with his poor job performance. After the district court granted summary judgment to the college,the Second Circuit remanded on appeal.

The Court’s Decision

The court’s discussion set forth the associational-discrimination analysis. Here is the play-by-play:

1. Protected Class. The Court held that Holcomb was a member of a "protected class" under Title VII.  Although Holcomb was not Black, his wife was, and there was evidence that his interracial marriage was the reason for his termination. 
2. Interracial Association.  The Court reasoned that, "where an employee is subjected to an adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race." All the district judges in this circuit to consider the question, including the district court in this case, have reached that conclusion."
3.  Pretext Evidence.  As noted above, there was plenty of evidence from which the Court could conclude that the reasons given for Holcomb’s termination were a mere pretext for race-based discrimination.  Another piece of evidence to support Holcomb’s claim was that O’Driscoll, the white staff member who replaced Holcomb, was the only white member of the staff without a Black girlfriend or wife. 

Recap

This decision from the Second Circuit does not necessarily address a novel issue of law.  Associational discrimination had previously been addressed by district courts within the Circuit.  But the clarity of the Court’s opinion in Holcomb very clearly sets the groundwork for similar future claims.

Racial discrimination is still a grim reality. Just ask Conective Energy, which has settled a suit filed by the EEOC for $1.65 million. Even in our super-modernized, uber-fast, and always-accessible culture, race-based discrimination has managed to stand its ground despite the changed landscape around it. The Conectiv case is a discouraging testament to this often invisible fact.

The Equal Employment Opportunity Commission (EEOC) filed the suit on behalf of four African-American workers against Conectiv and three subcontractors. The claimants worked at the now-defunct Bethlehem Steel site in Bethlehem, Pennsylvania. Connective was the contractor building a gas-fired power plant at the site.

The claims of race discrimination are disturbing. The workers alleged that they were subjected to racially derogatory comments such as “black men can’t read or write” and “I think everyone should own one.” But the harassment didn’t stop with workplace commentary. There was graffiti on the site that included “I love the Ku Klux Klan” and “if u not white u not right.” And, in the ultimate display of racial animus, a noose, made of heavy rope, was hung from a beam above on the of the men’s work area. The noose was not removed for at least 10 days, according to the Complaint.

Conectiv will carry the heaviest payment in the settlement. It is charged with a $750,000 tab, while the other three defendant-subcontractors, will pay $450,000, $250,000, and $200,000 each. As is standard (and non-negotiable) in settling with the EEOC, the defendants must Revise and edit their anti-discrimination policies, provide anti-discrimination training, and post a notice at all job sites setting forth the basis for the suit and subsequent settlement. The consent decree also provides that it does not constitute an admission of any wrongdoing by any defendant.

Racial harassment cases at the EEOC have surged since the early 1990s from 3,075 in Fiscal Year 1991 to nearly 7,000 in FY 2007. In addition to investigating and voluntarily resolving tens of thousands of race discrimination cases out of court, the EEOC has sued more than three dozen employers this decade in racial harassment cases involving nooses.

Terrence Cook served as the Supervising Trial Attorney and Mary M. Tiernan as Program Analyst on behalf of the EEOC.

Additional Resources:

EEOC’s Press Release, May 5, 2008

Philly.com, Forbes, and CNBC are each running the AP story.

As usual, Mark Toth, at the Manpower Employment Blog is on top of the latest headlines.

The Third Circuit, which governs Delaware, New Jersey, and Pennsylvania, applied a strict interpretation of Rule 23(f) and affirmed dismissal of a class action against Johnson & Johnson. The case, Gutierrez v. Johnson & Johnson, was filed by African-American and Hispanic former J&J employees alleging race discrimination–8,600 employees in all.

The federal District Court in New Jersey declined to certify the group as a class. Notably, the court found that the group had failed to identify any J&J policy that was discriminatory. The court also cited the diversity and size of the group as factors weighing against class certification.

Now, hang in there, this is where it starts to get complicated.

The potential class could have filed an appeal with the Third Circuit after the District Court issued its decision denying certification. But, instead, they wanted to file a motion for reconsideration. J&J agreed to an extension of time for the employee to file their motion. The court granted the requested extension but eventually denied the motion for reconsideration, upholding its denial of class status.

The employee-petitioners sought permission tofile an interlocutory appeal with the Third Circuit. The petition was filed within ten days of the District Court’s denial of their motion for reconsideration but 125 days after the original decision denying class certification.

A petition to appeal must be filed within 10 days. When a motion for reconsideration is timely filed, though, the 10 day-clock stops running until the motion is decided. Here, the employee-petitioners filed their motion within the deadline set by the District Court’s scheduling order. That was not enough for the Third Circuit. Instead, the court found that the 10-day requirement was mandatory–within 10 days of the decision denying class certification, the party has 10, and only 10, days within which to file an appeal.

The fact that the motion for reconsideration was timely for purposes of the District Court’s scheduling order did not matter. According to the Third Circuit, much to Johnson & Johnson’s relief, Rule 23(f) of the Federal Rules of Civil Procedure is strict and mandatory.