On December 10, 2011, Michael S. Douglas, Jr. filed a race discrimination complaint in Manhattan Supreme Court against 643 Broadway Holdings LLC (d/b/a Bleecker Kitchen & Co.) and co-owner Joshua Berkowitz. The complaint alleges that Berkowitz racially harassed former Bleecker Kitchen & Co. restaurant manager Douglas during his employment with Bleecker. The complaint further alleges that Berkowitz was not aware that Douglas, who is Filipino and African-American, was black, when Berkowitz, using coded words, counseled Mr. Douglas against hiring black servers. Mr. Douglas is represented by Cyrus E. Dugger of the Dugger Law Firm, PLLC and Michael Grenert of Liddle & Robinson L.L.P.
From the NY Daily News:
"Tatiana Swiderski, 25, said her bosses at the Fifth Avenue store turned a blind eye [to] the harassment — refusing to call cops on the pervy patrons and holing her away in the stock room for complaining.
'They made it their mission to make me feel invalidated,' Swiderski told the Daily News. 'They tried to make me feel like I was a crazy over-reactor.'"
Now she's suing the chain for sexual harassment and retaliation." (link)
Some of the details:
"The sexual assault came just two weeks after security told her a man had been following her and another employee with a video camera and shooting up their skirts as they went up the stairs. While the guards made him erase the video, they let him go and refused to call the police or tell her his name so she could do so. Her suit even claims that a guard mocked her.
After she complained to management, a security guard allegedly told her to “stop being a stupid bitch.” She also claims that a guard began patting her down as she left work, something she felt was sexually inappropriate and not done to other employees." (link)
Not only are the details pretty horrifying but it appears to be a potentially industry-wide issue:
"A 2002 study in Canada found that harassment for these workers doesn’t just come from coworkers, but from customers, as it did for Swiderski, which constitutes a “significant problem.” A majority of women in retail said they had been sexually harassed by customers on the job, but given that companies are focused on satisfying the customer, women face constraints in how they can handle it and many are reluctant to bring it up." (link)
According to the EEOC, it is a clear violation of federal discrimination law for an employer to take no action in response to harassment of employees by customers -- where it has notice of the conduct:
"The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action." (link)
The above response is, to put it lightly, clearly inadequate.
I was also struck by a throw away line in the middle of the NY Daily News. Interestingly - the article notes that when Swiderski began working:
"She said there was an early sign of trouble — a co-worker told her she'd only been hired because she's 'tall, pretty, thin and white.'" (link)
If that is accurate (which it may or may not be) Urban Outfitters may be headed for a repeat of a large racial discrimination case brought by LDF regarding hiring for "the American look" at Abercrombie and Fitch:
"Th[at suit alleged that Abercrombie refused to hire qualified minority applicants as Brand Representatives working on the sales floor while discouraging applications from minority candidates. It also charged that in the rare instances when minorities were hired, they were given undesirable positions to keep them out of the public eye.
* * *
In November 2004, LDF and co-counsel reached a settlement with the company, winning $40 million dollars for rejected applicants and employees who had been discriminated against by the company. The settlement’s consent decree also required the company to institute a range of policies and programs to promote diversity among its work force and to prevent discrimination based on race or gender." (link)
Of course this is just the hearsay statement of a co-worker. But, if true, Urban Outfitters (or at least this store location) may also soon be facing suit on the race discrimination front.
It will be interesting to follow this case as it develops.
As covered by the Style of the Case:
"According to the agreement, Barneys will pay $525,000 in damages, fees, and penalties, employ an anti-profiling consultant with expertise in the prevention of racial profiling in loss prevention and asset protection; Investigate customer complaints of profiling; develop and conduct anti-profiling training for loss-prevention and sales employees; adopt new loss-prevention detention policies and a new anti-profiling policy;limit access to its closed-circuit TV areas by local law enforcement officers and maintain records of visits by local law enforcement officers; and establish new record keeping requirements on investigations, detentions and false stops conducted by loss-prevention employees.
Rev. Al Sharpton released a statement Monday:
'Barneys’ agreement with the attorney general was a 'move in the right direction towards fairness and equal respect for all consumers, but we must monitor and continue to be vigilant.''” (link).
Rather incredibly, this is the second time the NY AG has sued Barneys for this exact same thing.
"In 2005, the state attorney general’s office, then under Eliot Spitzer, filed a federal lawsuit against Macy’s that claimed racial discrimination of black and Hispanic customers.
* * *
Macy’s at the time denied any wrongdoing, but the suit was resolved after the company agreed to pay $600,000 in damages, create a position of security monitor, develop regulations on handcuffing, and keep a database of records of all detentions." (link)
Question - Who will be the next AG to bring the same suit, about the same thing, ten years from now after Schneiderman -- and will it also be settled for almost the same amount of money?
Actually, this time it was resolved for $75,000 less than in 2005 so I guess we can estimate it will be $450,000 next time around.
Barneys appears to be a truly wonderful store.
New York City is undeniably more liberal than most other places in America. So it should be no surprise that it has one of the most protective anti-discrimination statutes in the country.
In contrast, federal discrimination claims often face difficult hurdles. There are countless situations where behavior that is objectively discriminatory, would not make it far as a discrimination claim under only federal law.
The result is that clearly discriminatory conduct goes unpunished, not because it is not discrimination, but because discrimination law has a standard, either judge made, or based on the text of the statute, that is very conservative - demanding at times incredibly exacting evidentiary support.
But what about situations that are clearly discriminatory, but where there is a “smart discriminator”? A discriminator who fails to leave a helpful document trail clearly showing the reason they did what they did was based on discrimination or retaliation.
Or what about instances that are discriminatory, but where the courts are be hesitant to find discriminatory because the conduct is viewed by some merely as passing slights?
Enter stage left – the New York City Human Rights Law, which applies less demanding standards for finding conduct to be discriminatory compared to its federal and state counterparts.
In fact, there are some pretty striking examples where the NYC law supported a discrimination lawsuit that might not have made it far in court under only federal law.
Here is one:
At an administrative hearing, a restaurant, a place of public accommodation under Administrative Code section 8-102(9), was found to have engaged in discrimination against an African American customer by asking her to pay for her food before receiving it, while three non-African American customers were not required to pay for their food until receiving their food orders. Respondents failed to demonstrate a legitimate, non-discriminatory motive for treating the African American customer differently.
Annotated NYC Administrative Code 8-107
Importantly, just this one instance was enough to find the restaurant liable for discrimination.
The restaurant was ultimately fined $5,000.
Amazingly, the restaurant did this to a “tester” from the New York City Commission on Human Rights – i.e. an employee of the Commission.
You can read the final decision and previous history here.
Come back for additional case studies demonstrating the distinction between federal and NYCHRL discrimination standards.
"Black lawyers accounted for 3 percent of lawyers at big firms last year, a percentage that has declined in each of the last five years. And the proportion of black partners at such law firms remained stagnant at 1.9 percent during the same period, according to the 2013 diversity scorecard published in the June issue of The American Lawyer." (link)
The black population of the United States is currently 13%.
"Blacks lag behind in the top tiers of the law, according to the American Lawyer, because unconscious racial bias can influence the types of assignments and the relationships between and among employees. That can hinder black lawyers from advancing to the highest slots, it said." (link)
As explained in The American Lawyer:
"What still is lacking, many black lawyers and diversity directors say, is a broad commitment by individual white partners to ensuring the success of minority lawyers, and particularly black lawyers. Recent research has painted an alarming picture of the continuing presence of unconscious racial bias at firms. The research confirms what a lot of black lawyers have known all along: It's not enough to recruit more black associates if you don't deal with pervasive bias." (link)
As explained by a black female ninth-year associate at a midsize firm:
"'You are deemed worthy of receiving the keys when you are liked, and you are usually liked by people who can relate to you or perceive you as similar to themselves,' a black female ninth-year associate at a midsize firm says, asking not to be identified because she is up for partnership. Black lawyers, she adds, 'would more often than not say that they were not able to bring their whole selves to work and therefore grew tired of the ruse and moved on, or they brought their whole selves to work and found themselves ostracized and alienated.'" (link)
The American Lawyer article points to a study similar to one previously covered here (regarding email responses by professors at top colleges):
"In late April, law firms were roiled by a study that shows in the starkest terms yet how implicit bias remains pervasive. The study, by Nextions, a law firm diversity consultant and leadership coaching firm, found that supervising lawyers were more likely to perceive African-American lawyers as having subpar writing skills.
In its study, Nextions inserted 22 errors, including minor spelling or grammar errors, factual errors and analysis errors, into a research memo written by a hypothetical third-year litigation associate. The memo was then sent to 60 partners who had agreed to participate in a writing analysis study. Half got a memo identifying the author as African-American; the other half, a memo noting that the associate was white. The hypothetical black associate got a significantly lower score on average than the hypothetical white one. Partners, regardless of their race or gender, had more positive things to say about the work of the white associate, and found fewer mistakes on average in the paper." (link)
Of course, that is not the only dynamic at play:
"Interviews with two dozen black lawyers, in-house counsel, diversity experts and academics, plus our exclusive law firm surveys, suggest a variety of causes. Most agreed that pressures within law firms that began during the recession have made partnership both a more difficult and less attractive proposition for black lawyers. Meanwhile, the pipeline has narrowed. As firms keep associate classes smaller, fewer black lawyers are moving into firms; the black law graduates who are tapped by elite firms continue to be a small group of high-ranking students from first- or second-tier law schools. Finally, a mid-2000s push by corporations to compel their outside counsel to diversify has receded, displaced by concerns over law firm pricing." (link)
The American Lawyer article highlights some of the efforts some law firms are taking in response to these issues, including revisiting hiring and evaluation systems:
"In the meantime, firms such as Schiff Hardin, Littler Mendelson and Reed Smith have begun taking steps to address both unconscious bias and structural impediments to black lawyer advancement. These steps echo in practical ways those recommended by the American Bar Association's Presidential Initiative Commission on Diversity in 2010 in its report summarizing its findings after a year of hearings on the issues." (link)
The full American Lawyer article is available here and is a very thorough and thoughtful piece.
AARP's analysis found:
"[T]hat Asians report the highest percentage (37%) out of several major ethnicities (Black, Hispanic & White) in NYC when it comes to their, a family member or a friend not being hired for a job since hitting 50. For Asian women the issue is a particular problem, with the group citing age as an issue 43% of the time - a rate 13% higher than their male counterparts and 17% higher than the general 50+ population in the city." (link)
Age discrimination is unique in that it has the potential to affect all employees at some point in their lives. In addition, it appears that age discrimination, in some cases, also interacts significantly with and/or is exacerbated by race and sex factors.
The 60th anniversary of Brown v. Board of Education is an important reminder to advocates for civil rights, in all contexts, to remember why it is we do the work we do.
Taking even a quick look back at some of the clips over the weekend was, for me, nothing short of inspirational. That racial justice advocates could believe in their mission and win during a time of deep-seated racial discrimination and violence is nothing short of a miracle.
So that hopefully you could get the same feeling, I decided I had to find and post a video that at least begins to remind us of this most basic fight for equality in America.
Here is a slightly dated but still inspirational PBS video of that victory.
This weekend I basked in the glow of this video, and a few others, secretly congratulating myself for being an, albeit tiny, modern part of this oldest of struggles for equality in America.
And then the New York Civil Liberties Union was a complete killjoy - I received the below email from them Sunday.
Well - back to work folks...
NY Has the Most Segregated Schools in America
Sixty years ago, the Supreme Court issued its landmark ruling in Brown v. Board of Education, ending legal segregation in public schools.
But equal education for all New York children remains a dream deferred.
New York has the most segregated schools of any state in the country–with the worst segregation upstate. Some schools have been called "apartheid schools" because racial isolation is so extreme.
It's time to reaffirm our commitment to Brown. Tell New York's policy makers that you want real solutions that fix school segregation in New York.
Racial isolation is harmful to children. On top of that, children in mostly black and Latino schools have shockingly fewer resources such as certified teachers, computers, libraries, art classes and textbooks. Unsurprisingly, they receive lower scores on standardized tests from grade school to high school and are far less likely to graduate.
Honor this proud moment in our country's history by telling New York's political leaders it's time to fulfill Brown's 60-year-old promise of equal education.
Thank you for helping New York keep its promise of equal education for all children, regardless of the color of their skin. Please forward this message to your friends.
New York Civil Liberties Union
Earlier today, Attorney General Eric Holder cited subtle forms of discrimination as the greatest danger to racial equality today:
"Speaking during the commencement ceremony at Morgan State University, a historically black college in Baltimore, Holder referred obliquely to a series of racially charged episodes that have “received substantial media coverage” in recent weeks — an apparent reference to the controversial comments made by Los Angeles Clippers owner Donald Sterling and Nevada cattle rancher Cliven Bundy. But Holder also said that the “outlandish statements that capture national attention” obscure a more troubling reality.
These outbursts of bigotry, while deplorable, are not the true markers of the struggle that still must be waged, or the work that still needs to be done,” he said.
“The greatest threats,” he said, “are more subtle. They cut deeper. And their terrible impact endures long after the headlines have faded and obvious, ignorant expressions of hatred have been marginalized.” (link)
The Attorney General backs me up on the importance of confronting non-explicit racism:
"Holder spoke broadly about the struggle for racial equality and what he suggested was the failure of some to fully grasp the degree to which minority groups can be marginalized. He took direct aim at the chief justice of the Supreme Court, John Roberts, who famously wrote in a 2007 opinion that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
“This presupposes that racial discrimination is at a sufficiently low ebb that it doesn’t need to be actively confronted,” Holder countered. “In its most obvious forms, it might be. But discrimination does not always come in the form of a hateful epithet or a Jim Crow-like statute. And so we must continue to take account of racial inequality, especially in its less obvious forms, and actively discuss ways to combat it.” (link)
Today's speech was given on the 60th anniversary of Brown v. Board of Education, the landmark Civil Rights rights desegregation decision.
The full transcript of the speech is available here.
The commissioner, Daniel Nigro, struck the right tone at his appointment ceremony last week when he promised to end racial injustice in a department with more than 15,000 employees. “We must no longer wait for a judge’s ruling to tell us what fairness means,” he said. “We must get out front. We must point the way to change.” He also acknowledged that integrating the department — which is about 83 percent white in a majority-minority city — would be “a great challenge.”
. . .
Mr. Nigro clearly knows the department from the ground up. He joined in 1969 and took over the command of rescue operations on Sept. 11, 2001, when the chief of the department was killed at the World Trade Center. His long experience gives him instant credibility with the rank-and-file. It will not be easy to end discrimination in a department that has been a bastion of white male privilege for nearly 150 years. (link)
Whenever people get into a debate about the need (or lack thereof) for anti-discrimination laws I am always fascinated.
While I firmly believe that anti-discrimination statutes are incredibly important the fact that some people disagree with me is not surprising at all.
However, what I find fascinating are the reasons people give for disagreeing with me.
What I have often found is that, while people in the abstract are against discrimination, and agree steps should be taken to oppose it, they tend to refuse to accept the notion that, however high-minded they may be, they too are susceptible to subconscious biases.
The result is a vague resistance to discrimination, but with an equally vague resistance to some of the measures used to fight subconscious biases that result in discrimination - including disparate impact civil rights statutes.
These statutes provide that, even where there is no intentional discrimination, a protected group can still be subjected to discrimination because a policy has a disparate impact on that group -- and where the defendant cannot qualify for an exception -- for example in the employment law context where that policy is not job related and/or consistent with business necessity -- the policy will be found to be discriminatory.
These disparate impact statutes have been one of the best vehicles for addressing subconscious biases because they provide a methodology to remove the policies that may (often inadvertently) exacerbate the effects of such biases.
To help underscore the importance of the above point I will provide a series of posts that address the application of subconscious biases in a variety of employment and other contexts.
The first, although not strictly an employment matter, is what I think was an ingenious demonstration of this issue.
A study sought to determine how professor response rates to emails from students varied based on the gender and ethnicity of the student. The result, unfortunately, unsurprisingly, was that professors were significantly more likely to ignore emails from female students and/or students of color and respond to emails from white males (based on the usual gender and/or racial association of the name):
"A group of researchers ran this interesting field experiment. They emailed more than 6,500 professors at the top 250 schools pretending to be the students. And they wrote letters saying, I really admire your work. Would you have some time to meet? The letters to the faculty were all identical, but the names of the students were all different."
. . .
[W]hat they found was there were very large disparities. Women and minorities [were] systematically less likely to get responses from the professors and also less likely to get positive responses from the professors. Now remember, these are top faculty at the top schools in the United States and the letters were all impeccably written." (link)
In short, "[w]hite men were more likely than women and minorities to receive a reply in every discipline except the fine arts, where the bias was reversed.” (link)
Business schools should take particular notice of this study:
"The business field showed the greatest disparity — 87 percent of white men received a response; compare this to only 67 percent of women and minorities who got a reply. Other disciplines such as computer science, engineering, and math also showed a significant bias against female and minority students." (link)
One of the most interesting aspects of the study is that Asian students experienced the greatest negative bias:
Previous studies of academia have shown a positive trend with Asians in higher education institutions. Not this time. “Among private university faculty the response rate for white men was 29 percentage points higher than for Chinese women — the greatest disparity observed . . . .” (link)
The researchers also found that "the greater the professor's salary, the greater the difference in response rate between white men and minority students." (link) Indeed, “[f]or every 13,000 increase in salary, . . . [there was a] drop of 5 percentage points in the response rate when compared to Caucasian males.” (link)
This study is a good illustration of why it is important for tools such as the civil rights statutes, and specifically their disparate impact provisions, are such important aspects of any effort to continue to address the effects of subconscious biases.
At least for now, the substantive equality, and ability to equally access opportunity, for all Americans, other than white males, depends on them.