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Implicit bias occurs when individuals make judgments about people based on gender, race or other prohibited factors without even realizing they’re doing it.
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Race Bias Claims Proceed Due to Lack of Documentation. Hutchens v. Chicago Board of Education, 7th Cir., No. 13-3648.
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A trial court’s ruling dismissing discrimination claims against the Chicago Board of Education and its unit director must be reversed based on a lack of documentation, the 7th U.S. Circuit Court of Appeals ruled.
Joyce Hutchens, a curriculum facilitator, alleged that she was discriminated against when she and another curriculum facilitator, Deborah Glowacki, were laid off by the board of education and Amanda Rivera, the board’s unit director. The board subsequently reinstated Glowacki, who is white, but not Hutchens, who is black.
Hutchens claimed that her credentials were as good as or better than Glowacki’s credentials. She previously taught at a prestigious Chicago public school, while Glowacki taught for several years at a private parochial school. Both curriculum facilitators were certified by the national board, but Hutchens also was certified to teach various language and business subjects. Glowacki held no specialized certifications.
The board of education presented testimony that Glowacki appeared to have better leadership skills than Hutchens and that Hutchens did not get along well with other employees. The curriculum facilitators’ supervisor also testified that Glowacki’s job performance was better than Hutchens’. Based on this evidence, the trial court dismissed Hutchens’ discrimination claims.
The 7th Circuit, however, criticized the board for failing to produce documentation to back its assertions. While the board and Rivera claimed that even a mistaken decision by officials could not, by itself, establish discrimination, the 7th Circuit ruled that a reasonable jury could interpret perceived errors that occurred when the board weighed the curriculum facilitators’ credentials as evidence of discrimination. The 7th Circuit reversed the dismissal of claims and ordered a trial.
By Jeffrey L. Rhodes, the managing partner of the civil division of
Albo & Oblon LLP in Arlington, Va.
FLSA Protects Worker Who Made Verbal Complaint
Greathouse v. JHS Sec. Inc., 2nd Cir., No. 12-4521
The Fair Labor Standards Act (FLSA) prohibits retaliation against employees who make verbal pay-related complaints directly to their employers, not just employees who make written complaints to government agencies, the 2nd U.S. Circuit Court of Appeals held.
Darnell Greathouse worked as a security guard for JHS Security Inc. During his employment, he was the victim of several illegal employment practices, including paying wages late or not at all.
In October 2011, Greathouse complained to Melvin Wilcox, JHS Security’s president and part-owner, that he had not been paid in several months. Wilcox allegedly responded, “I’ll pay you when I feel like it” and then drew a gun and aimed it at Greathouse, who at that point assumed he was fired.
Greathouse filed a lawsuit in U.S. district court in New York, alleging that JHS Security violated the FLSA and the New York Labor Law by failing to pay him proper wages and that the company also violated the FLSA’s anti-retaliation provision by effectively discharging him as retribution for his complaint to Wilcox.
The district court awarded Greathouse approximately $30,000 in damages on his unpaid wages claim but dismissed his retaliation claim.
On appeal, the 2nd Circuit vacated the district court’s decision to dismiss the retaliation claim. The circuit court held that a claim for FLSA retaliation may be premised on an employee’s verbal complaint made internally to a supervisor, so long as the complaint is clear and detailed enough for a reasonable employer to understand that the employee’s intention is to assert his or her rights under the FLSA.
The court stated that internal verbal complaints made to an employer require some degree of formality and that the determination of whether a particular verbal complaint constitutes an act protected by the FLSA is a context-dependent inquiry.
By Andrew G. Chase, an attorney with
Seaton, Peters & Revnew P.A., the Worklaw® Network member firm in Minneapolis.
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