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Discrimination at its essence

imagesThe Third Circuit’s recent decision in Hassan v. City of New York, — F.3d —, 2015 WL 5933354 is a welcome reminder that the Court understands the real harm inflicted by discrimination. Discrimination is not, and I repeat not, principally an economic tort. Economic losses often result from discriminatory decisions, but discrimination is more about the dignitary – some would say spiritual – injury inflicted when one is judged or treated differently because of skin color, race, age, gender or religion.

The plaintiffs in Hassan claimed that they were targets of a wide-ranging surveillance program that the New York City Police Department (the “NYPD”) began in the wake of the September 11, 2001 terrorist attacks (the “Program”). They alleged that the Program was based on the false and stigmatizing premise that Muslim religious identity “is a permissible proxy for criminality, and that Muslim individuals, businesses, and institutions can therefore be subject to pervasive surveillance not visited upon individuals, businesses, and institutions of any other religious faith or the public at large.” They sued “to affirm the principle that individuals may not be singled out for intrusive investigation and pervasive surveillance that cause them continuing harm simply because they profess a certain faith.” The District Court threw the case out, believing that the Program had not caused any harm. The Third Circuit reversed. Let’s take in some of what the Appellate Court had to say.

“Discrimination itself, by perpetuating archaic and stereotypic notions or by stigmatizing members of the disfavored group as innately inferior and therefore as less worthy participants in the political community, can cause serious non-economic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group. After all, the fundamental concern of discrimination law is to redress the dignitary affront that decisions based on group characteristics represent, not to guarantee specific economic expectancies. *** Our Nation’s history teaches the uncomfortable lesson that those not on discrimination’s receiving end can all too easily gloss over the badge of inferiority inflicted by unequal treatment itself.”

Defense lawyers, neutrals and judges who rely on lost wages alone to measure the harm inflicted by discriminatory decisionmaking would do well to read Hassan and reflect on the “dignitary affront that decisions based on group characteristics represent.”

Religious and cultural expression in the workplace

I recently received a call from a Native American being harassed at work because his hair is long.  Many Native Americans’ wear their hair long as an expression of their ancestry and heritage, and because they maintain sincere religious beliefs that long hair is a sacred symbol of their life and experience in the world and should only be cut to mark major life events, such as the death of a loved one.  To my knowledge, the only federal court to address this issue is the Fifth Circuit, which ruled in favor of a Native American boy and permitted him to wear his hair long at school.  As I considered the facts of the case, I was reminded of a recent press release from the EEOC announcing a lawsuit against a corporation that failed to hire a qualified applicant because she wore dreadlocks.

According to the EEOC’s suit, after completing an online job application, Chastity Jones was among a group of  applicants who were selected for a group interview on May 12, 2010.  At the time of the interview, Jones, who is black,  had blond hair that was dreaded in neat curls, or “curllocks.”  Catastrophe’s human resources staff conducted  the group interview and offered Jones a position as a customer service  representative.  Later that day, the human resources staff met with Jones to discuss her training schedule.   During that meeting, they realized that Jones’s curled hair was in  dreadlocks.  The manager in charge told  Jones that the company did not allow dreadlocks and that she would have to cut  them off in order to obtain employment.  Jones declined to cut her hair, and the manager immediately rescinded the job offer.

The EEOC argues that Catastrophe’s ban on dreadlocks and the imposition of its grooming policy on Jones discriminates against African-Americans based on physical and/or cultural characteristics.  Race discrimination violates Title VII of the Civil Rights Act of 1964.  Eliminating  barriers in recruitment and hiring, especially class-based recruitment and  hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities, is one of six national  priorities identified by the EEOC’s Strategic Enforcement Plan.

The EEOC filed suit in U.S.  District Court for the Southern District of Alabama (Equal Employment Opportunity Commission v. Catastrophe Management  Solutions, Inc., Civil Action No. ­­­­­­­­­­­1:13-cv-00476-CB-M), after  first attempting to reach a pre-litigation settlement through its conciliation  process.  The agency seeks compensatory and punitive damages for Jones as well as injunctive relief.

“This litigation is not about policies that require employees to maintain their hair in a professional, neat,  clean or conservative manner,” said C. Emanuel Smith, regional attorney for the  Birmingham District Office.  “It focuses  on the racial bias that may occur when specific hair constructs and styles are  singled out for different treatment because they do not conform to normative standards  for other races.”

Delner Franklin-Thomas, district director for the EEOC’s  Birmingham District Office, added, “Generally,  there are racial distinctions in the natural texture of black and non-black  hair.  The EEOC will not tolerate employment discrimination against African-American  employees because they choose to wear and display the natural texture of their  hair, manage and style their hair in a manner amenable to it,  or manage and style their hair in a manner differently from non-blacks.  Hair grooming decisions and policies (and their implementation) have to take  into consider­ation differing racial traits, and cannot penalize blacks  for grooming their hair in a manner that does not meet normative  standards for other races.”

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