A noose is placed on a desk or a chair, or on a door or in a locker. The symbolism is clear. Nooses in the workplace are meant to intimidate because of race. The noose of the hangman is meant to be a frightening visual representation of the harassment that included thousands of black people who died at the hands of lynch mobs following the civil war and on into the twentieth century. This history has led to symbolic use of a noose. It has long been a tool of various hate groups. The turning up of nooses in the workplace has been having an affect on black employees, and that affect has been spilling over to affect other minorities.
Equal Employment Opportunity Commission (EEOC) officials and law enforcement officials report on this trend. While companies routinely try to settle nooses in the workplace cases out of court, the EEOC are always pursuing dozens of such cases. The EEOC point out that, when in seen light of their overall caseload, these cases are disproportionally high. The EEOC maintains that nooses in the workplace is a growing trend.
Every case of nooses in the workplace has its own distinctive characteristics, but there seem to be elements common to most of the cases brought forward. The noose is almost never the only method of intimidation. Racist slurs, racial epithets, racist jokes, racist graffiti and other ongoing intimidation and harassment usually accompany the noose.
No one knows for sure why these racist incidents have risen lately. Some discrimination attorneys have speculated that there may be a growing intolerance by younger workers not familiar with the civil rights movement and struggles of the 1950’s and 1960’s. The incident may grow out of resentment of some whites over the implementation of affirmative action resulting in diverse workplaces where blacks and minorities were previously excluded.
Another reason cited for the rise in such incidents reported to EEOC is a growing number of employers fighting it in court. Some employers are referring to the incidents as banter and horseplay between employees without harmful intentions.
There have been some accusations of minority workers filing false claims for purpose of collecting money. Employment and discrimination attorneys generally agree that a false claim of racially related harassment, violence and misconduct in the workplace is extremely rare. History has borne out that out; there have been only a handful of false claims involving nooses in the workplace. Employment and discrimination attorneys also point out that, when subjected to scrutiny, the false claims are easily brought to light.
Employment and the Expansion of Disability Claims
The rules issued by the Equal Employment Opportunity Commission (EEOC) expand the protection granted employees under the Americans with Disabilities Act (ADA). These rules were authorized by the ADA Amendments (ADAA) and were passed by Congress in 2008. The results are a significant expansion of the number of individuals claiming ADA protection.
Americans with disabilities are a large and economically disadvantaged group. The goals of ADA mandates are similar to civil rights. One goal is to make sure people with disabilities have access to employment. In the past, employers traditionally shut out disabled people from employment. A second goal is to increase job opportunities for disabled. As a group, people with disabilities earn less than people without disabilities. Employers that will be affected. Employers that employ 15 or more employees who work for at least twenty calendar weeks within a year. The EEOC points out that tracking this can become rather complicated and recommends staying in close communication to ensure compliance. Broad is the protection. The ADAA has expanded the definition of “disability”. As a result, employees will have a much easier time when seeking the law’s protection.
Do I fall under this broad coverage? According to the EEOC, an individual with a disability is a person who:
- Has a physical or mental impairment that substantially limits one or more major life activities;
- Has a record of such an impairment; or
- Is regarded as having such an impairment.
The key is how limited you are in performing your major life activities. For example, doctors may have diagnosed you as being clinically depressed. However, you may not be qualified for coverage because you are not substantially limited in performing major life activities.
What are my rights?If you are covered under the ADA, your employer must make “reasonable accommodations” as long it does not cause the employer “undue hardship”. Undue hardship for the employer means it would cause significant difficulty or expense. Reasonable accommodation can take many forms, but some common examples are included here:
- Part time and job sharing
- Flexible schedules
- Time off for doctor’s appointments, support groups and therapy
- Flexible break time to meet individual needs
- Additional leave time
Filing a Charge. If you think an employer has discriminated against you because of your disability, you may file at the nearest EEOC office or find an experienced employment attorney. If you have no office in your area, it can usually be over the phone.
Is Your Employer Passing You Off As An Independent Contractor?
When you provide services for pay, your employment status is that of either an “employee” or an “independent contractor“. Your employment status is important since employment law treats employees and independent contractors very differently. As New York employment law attorneys point out, these differences give employers many administrative and financial incentives to (mis)classify you as independent contractors when employers should classify you as an employee.
New York employment law attorneys put it in simple terms, when an employer classifies you as an independent contractor there is no benefits package, including no overtime pay, sick days, vacations days, health insurance or pensions. The employer does not have to withhold taxes from your pay and avoids paying unemployment insurance, Medicare and Social Security for those workers. Employers provide independent contractors with an Internal Revenue Service (IRS) Form 1099 in place of the Form W-2. Independent contractors are not protected under The Fair Labor Standards Act (FLSA).
Employers can suffer serious consequences for misclassifying employees as independent contractors. Failure to classify properly an employee can lead to substantial financial liability. In addition to retroactive wages and benefits owed the misclassified employees, there are taxes, substantial fines and penalties involved. Areas that misclassification can effect include:
- Worker injury claims. If an injury occurs on the job, state workers’ compensation laws usually provide compensation for the injured party. If an independent contractor files a claim and is determined to be an employee of the organization, it could result in civil action and fines against the employer.
- Worker unemployment claims. In some states, unemployment compensation claims by workers classified as independent contractors may trigger an audit of the employer. If the audit finds misclassification, the employer is liable.
- Discrimination claims. Though anti-discrimination law has not generally afforded protection to independent contractors, caution is in order. Some courts have allowed the protection to spill over to include independent contractors.
- Federal tax liability. The adjective that comes up most often to describe the financial liability for misclassification of employees is “onerous”.
- Third party liability. Responsibility for injured third parties may hang on the determination if a worker is properly classified. A word of caution to employers: Some courts have found that using independent contractors does not shield an employer from liability.
State and federal officials have stepped up their pursuit of companies trying to pass off their employees as independent contractors. If you are located in New York and believe an employer has misclassified you as an independent contractor, you may be entitled compensation and should contact New York employment law attorneys for a consultation.
Dionne v. Floormasters Enterprises, Inc. and the FLSA.
The 11th Circuit Court of Appeals, which controls Florida, Georgia, and Alabama, recently ruled that plaintiffs may not recover attorney fees, as they normally would be entitled to under the Fair Labor Standards Act (FLSA), in situations where the defendant-employer pays plaintiffs all the actual damages, liquidated damages, and interest owed to them outside of a negotiated settlement. In Dionne v. Floormasters Enterprises, Inc., the plaintiff filed a lawsuit alleging overtime violations by the defendant. The total amount of damages sought by the plaintiff, including liquidated damages as provided under the FLSA and interest, amounted to $3,000. After the plaintiffs filed the suit, the defendant tendered a payment to the plaintiff for the full amount they were seeking, “in the interests of expeditious resolution of Plaintiff’s claim and efficient use of this Court’s time and resources.” After tendering this payment, the defendant moved to dismiss the claim as moot, since even if the employer was found to be liable, the employer would not have to pay any additional amount to the plaintiff. The court granted the defendant’s motion, dismissing the case with prejudice. However, the employer did not compensate the plaintiff for attorney’s fees and costs, and the court’s dismissal of the case means that the employer’s liability for its illegal conduct was never established.
On appeal, the plaintiff argued that it was owed attorney’s fees, which go above and beyond the $3,000 that the defendant tendered. The FLSA provides attorney fees for the plaintiff, if the plaintiff proves that the employer violated the FLSA wage and overtime laws in his or her suit. Since the only reason that the defendant paid any amount to the plaintiff is that the plaintiff brought a lawsuit, the plaintiff felt he was entitled to the reasonable attorney’s fees that he incurred in bringing the suit and facilitating the payment.
The 11th Circuit Court of Appeals decided that this is a classic application of “catalyst” test, which states that “a plaintiff should be found as prevailing if its ends are accomplished as a result of the litigation even without formal judicial recognition, there is a causal connection between the plaintiff’s lawsuit and the defendant’s actions provided relief to the plaintiff, and the defendant’s actions were required by law.” However, the Court notes, the Supreme Court rejected the “catalyst” test in 2001 in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, which requires that plaintiffs demonstrate that such a payment alters the legal relationship between the party’s in order for the plaintiff to be considered the “prevailing party.”
Since the plaintiff is not considered the “prevailing party” as decided in a court of law, it reasons that the plaintiff is not entitled to attorney’s fees as provided by statute.
Even though the 11th Circuit here seems to break new ground, the facts of this case may limit its applicability going forward. For example, the Court distinguishes cases in which plaintiffs are awarded lawyer’s fees and costs following the court’s dismissal of the plaintiff’s claims, where the dismissals incorporate the terms of a settlement between the parties. It is very likely that where there is a settlement between the parties that has been incorporated into a court order, Dionne may not apply. This is supported by the Supreme Court in Buckhannon, which states that judicial imprimatur, or the court’s seal of approval, is a necessary part of establishing a prevailing party in a lawsuit.
Importantly, in this case, the defendant never admitted liability, paid the full amount of damages sought by plaintiffs (including unpaid wages, liquidated damages, and interest), and never entered into a settlement agreement, let alone a settlement agreement that was entered as a court order. For this holding to be applied against plaintiffs in the future, a defendant would have to provide the full amount of unpaid wages, liquidated damages, and interest sought by the plaintiff. While in this case that amount was only $3,000, in many cases that amount may be much higher, and many defendants may be unwilling to pay the entire amount of the damages that plaintiffs seek in lieu of a negotiated settlement.
Are you protected from discrimination on an Indian Reservation?
Broadly speaking, federal protections against discrimination in the workplace serve Americans living in all 50 states. However, discrimination rules can be quite different if that discrimination took place on an Indian reservation. Many of these reservations exist as entities separate from the states, pursuant to federal law and treaties between the reservation and the federal government. As a result, victims of workplace discrimination on reservations often have to go through a different process in order to seek recourse.
While Congress does have the power to create and enforce federal law on Indian reservations, Congress also has the power to exempt Indian reservations from those same laws. For example, Indian reservations are exempt from Title VII of the Civil Rights Act and Title I of the Americans with Disabilities Act. These two acts combined comprise main sources of federal law governing race, gender, and disability discrimination in the workplace.
However, if you are a victim of discrimination on an Indian reservation, you may still have recourse. Some reservations voluntarily allow themselves to be regulated by the federal statutes from which they would otherwise be exempt, and even more reservations enter into agreements with the states in which they reside and voluntarily subject themselves to applicable state law protections for workers. You’re starting point, and best bet for a favorable outcome regarding your discrimination claim, is to become familiar with the constitution and laws of your particular reservation; see what, if any, local reservation laws have been violated; and investigate what administrative and judicial venues exist under reservation law. Often, a reservation will have its own administrative and judicial systems, with investigators, judges, and other judicial officials, to resolve employment disputes.
VKV and DiNovo Price Ellwanger & Hardy with Hank Aaron at the Unveiling of Ambassador Young Portrait at the National Portrait Gallery
Pictured here (from left to right) at the Unveiling of Ambassador Andrew Young’s portrait in the National Portrait Gallery: Robert J. Valli, Jr., Jay Ellwanger, Hank Aaron, Rev. Peter Johnson, and David Ellwanger. Baseball legend, Hank Aaron was in attendance to honor the life and work of Ambassador Young. Hank Aaron was the last African-American player from the Negro Leagues to play in the major leagues. He played 21 seasons with the Milwaukee/Atlanta Braves, where he achieved most of his acclaim and records. In 2002, Aaron received the Presidential Medal of Freedom.
Unveiling of the Portrait of Ambassador Andrew Young
VKV was honored to be invited and attend the unveiling of the Portrait of Ambassador Andrew Young at the Smithsonian National Portrait Gallery. Sara Kane is pictured here with Ambassador Young, Martin Luther King, III and Rev. Peter Johnson and wife Delores. Ambassador Young is a champion of the Civil Rights Movement and has served as the Mayor of Atlanta, a Congressman, and United States Ambassador to the United Nations. He has also received the Presidential Medal of Freedom. Ambassador Young was a member of the Southern Christian Leadership Conference during the Civil Rights Movement and was a friend and supporter of Dr. Martin Luther King, Jr.
Job Applications: What are your rights and how to handle a discriminatory question.
Preparing for a new job and the application process is often nerve-wracking and stressful. Do you ever wonder what the employer will ask you, or what qualifications you should emphasize, to show that you are capable of performing the tasks of the job? Preparing to answer questions such as “What can you do for our team?” or “What’s your greatest weakness?” is crucial. But imagine your potential employer asking you “How old are you?” or, “Are you planning on having kids soon?” The interview process has changed quickly from innocent to illegal. Before going to your next job interview, brush up on your rights as an applicant.
There are many things an employer cannot ask you on your application. These are certain questions that violate your civil rights, such as:
- Age/Date of birth. The Age Discrimination in Employment Act protects applicants from disclosing their age during the hiring process to prevent age discrimination. If the applicant is less than 18 years of age, asking for the date of birth is permissible because of children’s labor laws. After being hired, the company may ask for birth certificates or licenses to verify date of birth for pension purposes, but they may not ask for these before hiring you.
- Race, Religion, National Origin. Title VII of the Civil Rights Act requires that covered employers consider people of all nationalities and color. Each application should state that the company is an Equal Opportunity Employer, and at no point should you answer a question like “Where were you born”, “What is your ancestry”, or “What religious beliefs do you follow?” There are I-9 forms that can be used to determine the status of citizenship of an applicant. These questions do not belong on an application.
- Physical traits, disabilities. Unless height and weight are directly related to job performance, these questions should not be on the application. The Americans with Disabilities Act prohibits general inquiries about disabilities, health problems, and medical conditions. The employer may ask if you are capable of fulfilling the requirements of the job, but they may not ask you if you have disabilities or health problems.
There are many other restrictions on the application and interview process, which should be explored by everyone looking for employment. While most employers do not have discriminatory intentions and are attempting to find the right “fit for the job,” you may find yourself in a situation where you are asked a question that is unlawful.
What should you do when this problem arises? First, consider the intent of the question and how it was phrased. It is important that you understand the employer’s reason for asking the question and their method of assessment, rather than assuming they have discriminatory intentions.
There are many ways to creatively answer questions without disclosing unlawful information. For example, if you are asked “How old are you?” the best answer is to refer the question back to the job you are applying for. “I am of legal working age” is a fit answer. If you are asked “What religion are you?” it is okay to answer with “My religious practices will not hinder my potential to successfully perform the tasks of this position.” Keep in mind that your application becomes a permanent part of your file. If you choose to be untruthful on your application, that only provides the employer a potentially valid reason to terminate you down the road.
There are times, however, that witty answers may not be enough for the prying interviewer. If this is the case, you may follow these steps:
- Inform the employer that the question is illegal. While most people wouldn’t dare correct an interviewer, it can be tactfully stated in a non-accusing way.
- Answer the question. Now that you have informed them of the question being illegal, the employer would be in violation of your civil rights if the information is used against you.
- If you are offended, you can file a claim with the Equal Employment Opportunity Office.
Be aware that taking this stance for your civil rights is courageous and may cost you the opportunity for employment. However, if an employer is left in the dark ages and has no qualms about violating your rights, it might be best to seek employment elsewhere.
Hundreds rally against local oil company accused of racial discrimination
HOUSTON — Rev. Peter Johnson and civil rights activist Sara Kane joined hundreds of African American workers and local residents Monday in a rally against a company they say is doing nothing to prevent racial harassment of minority workers.
The protest was held in front of the Mickey Leland Federal Office Building on 1919 Smith Street around 11:30 a.m.
Protesters urged for a federal investigation of Turner Industries in Houston, claiming there are nooses and rebel flags hung up at the factory. They feel this is a violation of their civil rights.
Turner, a 1.6 billion dollar company that services the oil industry, has had issues in the past related to civil rights in other cities.
Original Press : https://www.khou.com/home/Hundreds-rally-against-local-oil-company-accused-of-racial-discrimination-114949164.html
Turner Industries to face lawsuit for discrimination
BATON ROUGE, La (NBC33) – Civil rights leaders announced today that Baton Rouge-based Turner Industries is being sued for discrimination by several of its employees.
Turner Industries released a statement denying any discriminatory actions, but one employee tells a much different story.
“All the years of frustration and pain that I went through,” Yvonne Turner, former employee at Turner Industries, said a press conference held in Baton Rouge. “I’m tired and it’s time for me to speak up.”
For more on this story, watch NBC33 News at 10 p.m.
Original Article: https://www.nbc33tv.com/news/crimetracker/turner-industries-to-face-lawsuit-for-discrimination
By Brix Fowler – Reporter NBC
Tuesday, February 1, 2011