Quietly and confidently, IBM has stood up for social change and progress. The company is supportive of same sex unions, especially in famously homophobic areas of the world like North Korea. The powerful corporation was key in instituting racial diversity in its workforce long before it was politically or culturally popular, its Equal Opportunity Policy remaining virtually unchanged since 1953. International Business Machines has been a strong proponent in putting women in places of power. One of the lead designers on the original IBM PC—which, along with the automobile and airplane stands as one of the greatest consumer inventions of the 20th century—was female.
While the company’s reputation as a computing powerhouse has been overshadowed by Microsoft and then Apple in the past twenty years (IBM left the personal computing almost a decade ago), it remains a singular voice in computing, and in progressive social policy.
IBM’s voice got even louder back in April. IBM has been a longtime sponsor of golf’s Masters Tournament, held at the Augusta National Golf Club in Georgia. The Club has always admitted IBM executives as members—until IBM hired its first female CEO, Ginni Rometty, in January 2012. Many thought that the Club should admit Rometty as a member, finally divesting itself of its historically male-only policy. The Club refused, garnering a media firestorm and threats to IBM’s sponsorship of the Masters. The Augusta was famously silent in defending its policies—until today.
Women admitted to the Augusta National Golf Club
In an about-face, former Secretary of State Condoleeza Rice and high-octane businesswoman Darla Moore, were admitted as the first two women to be granted membership to the August Club. Strangely enough, the Club has made no decision as of yet to admit Ginni Rometty (IBM continues to sponsor the Masters).
Golf and Social Progress
The Augusta Club’s longstanding sexist policies symbolize one of the ugly truths about golf: it is the United States’ least progressive sport. During Tiger Woods’ peak in the late 1990s, some clubs decided to admit minority members for the first time—a full thirty-five years after Alabama schools were integrated. As much as the PGA touts its progressive policies, golf remains glaringly behind the curve in terms of social progress.
Is It Legal for Golf Clubs to Discriminate?
The Augusta National Golf Club’s policy of not admitting women is, according to U.S. law, legal and legitimate. However, in many segments of our national culture, especially the workplace, discrimination is highly illegal. If you feel you have been discriminated against due to gender, race, sexual orientation, or religious belief, call the Law Offices of Valli, Kane and Vagnini to speak with a trained professional.
“An evil deed is not redeemed by an evil deed of retaliation”
Race discrimination can come in many forms, from the subtle to the outright reprehensible. In September 2011, the criminal justice system addressed one of the most heinous acts of racism our country has seen in the past 50 years. This incident is not a reflection on any particular part of our country. Rather, it evidences that racism and discrimination still exist in America today and the criminal justice system is at the forefront of combating the issue.
On September 19, 2011, Deryl Dedmon was indicted for felony murder with hate-crime enhancement in Jackson, Mississippi. It is alleged that Mr. Dedmon, who is 19 years old and White, found James Anderson, who was 48 and African American, in a motel parking lot and attacked him. Mr. Dedmon, with a group of White teenagers beat Mr. Anderson and then Mr. Dedmon ran him over with his truck. Afterwards, Mr. Dedmon robbed Mr. Anderson, but it has yet to be determined what was stolen, other than his life. Prior to this vicious assault and murder, Dedmon and the group of teenagers were drinking and partying and then decided to “find a Black man to mess with.” The atrocious assault was caught on video surveillance from a nearby hotel camera. It is further alleged that Mr. Dedmon was using racial slurs and was yelling “White power” during the assault.
The Mississippi criminal justice system, as well as the District Attorney of Hinds County Robert Smith, have taken the proper steps to address the severity of Mr. Dedmon’s actions. Life without parole, as well as the death-sentence accompanies a conviction on these charges.
In a letter written by Barbara Anderson Young, Mr. Anderson’s sister, she asks District Attorney Smith not to consider using the death penalty in this case. “We oppose the death penalty because it historically has been used in Mississippi and the South primarily against people of color for killing Whites. Executing James’ killers will not balance the scales. But sparing them may help spark a dialogue that one day will lead to the elimination of capital punishment.” Ms. Young further commented, quoting Coretta Scott King, the widow of Martin Luther King, Jr., “An evil deed is not redeemed by an evil deed of retaliation.” Ms. Young’s compassion and understanding exemplify that this particular incident of racial discrimination represents more than just that; it represents the ongoing struggle that society has in determining the most effective mechanism by which to deal with the problem of discrimination. It further exemplifies what should be a societal goal of illuminating the continuing and ever important struggles for equality.
It is abundantly clear that racism still exists and it is evidenced in the most shocking and devastating ways. Deryl Dedmon is only 19 years old, but he has allegedly managed to ruin the lives of two families forever, all in the name of racial hatred. He allegedly did not know James Anderson, but James Anderson was a man with a family, just like Mr. Dedmon. Perhaps when there is a day that we all view one another as Human, rather than as being part of a certain race, ethnicity or religion, we will be able to better succeed as a society. Perhaps, Ms. Young’s hope that as a result of her brother’s untimely and horrific death it will enable us to engage in a critically valuable and necessary dialogue may be realized.
Although Valli Kane & Vagnini does not practice criminal law, our interests are aligned with those prosecuting hate crimes across this country in that we do fight for civil rights and the right to work and live without the injustice of bigotry and discrimination. Being discriminated against for any reason is inexcusable and we encourage all those exposed to any type of discrimination to stand up and seek justice.
Post Wal-Mart Ruling in U.S. v. City of New York
In the case of U.S. v. City of New York, United States District Judge Nicholas Garaufis, in the Eastern District of New York, rejected defendant New York City’s attempt to de-certify a class of black firefighters in their suit alleging race discrimination in hiring procedures. The City unsuccessfully relied on the Supreme Court’s recent ruling in Wal Mart v. Dukes, in which the Court more strictly limited the parameters for certifying class actions.
The Supreme Court held in Wal-Mart that there must be a “common question” of law or fact that “must be of such a nature that it is capable of class-wide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” In U.S. v. City of New York, the court found there to be four common questions, which are “whether Defendants” uses of [the written examinations] had a disparate impact upon black applicants for the position of entry-level firefighter; whether Defendants’ uses of those examinations were job related to the position in question and consistent with business necessity; whether alternative practices that satisfy the asserted business necessity without disparate effect are available; and whether Defendants engaged in a pattern or practice amounting to intentional discrimination.” Importantly, this court also cites to a 2nd Circuit case from 2006, finding that “for purposes of Rule 23(a)(2) [class certification] even a single common question will do.”
Why were the plaintiffs in this case permitted to maintain their class status, while the plaintiffs in Wal-Mart lost theirs? It boils down to the breadth of the scope of the class. In Wal-Mart, the class was essentially every woman, regardless of position or geographic location, employed by a company that has many different classes of employee, ranging from greeters paid on an hourly basis to salaried managers. The Wal-Mart court essentially found that there was not a common issue of law or fact between a store greeter working in a rural Arkansas location and an assistant store manager working in a Californian urban location, especially given the lack of evidence in that case.
Judge Garaufis in this particular case was confronted with no such issue. The class was limited to only black firefighters and firefighter applicants who sat for one of two specific written exams, and who were harmed by the City’s use of a pass/fail screening device with specific cutoff scores or a method of rank-order processing. Compared with the very broad class in Wal-Mart, which included all women who were harmed by a vague and lightly-evidenced “culture” of sexist discrimination, the class considered in this case is very narrowly tailored and easily meets the statutory requirements.
This case is likely the first of many that will demonstrate that Wal-Mart applies most forcefully to cases that push the boundary in terms of how broad a class should be. For the majority of class actions that specify classes based on specific and tailored criteria, Wal-Mart should not pose a major threat to plaintiffs going forward.
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.
