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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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Statements by a general manager that a former employee was “too black to do various tasks” and that a “dark skin” black person was not allowed to handle money constituted direct evidence of discrimination, according to the 5th U.S. Circuit Court of Appeals.
Esma Etienne, a black woman, sued her former employer, Spanish Lake Truck & Casino Plaza LLC, for violations of Title VII of the Civil Rights Act of 1964. Specifically, Etienne, who worked as a waitress and bartender, alleged that Spanish Lake’s general manager, Bernard Terradot, failed to promote her to a managerial position, despite being qualified, because of her race and color.
Etienne submitted an affidavit by Jeannene Johnson, a former manager at Spanish Lake, in support of her allegations. In the affidavit, Johnson indicated that Terradot determined each employee’s responsibilities based on the color of the employee’s skin. Johnson further indicated that Terradot, on numerous occasions, said Etienne was “too black” to do certain casino tasks.
The district court granted summary judgment in favor of Spanish Lake. The 5th Circuit vacated the district court’s decision and remanded the case. According to the 5th Circuit, the district court, relying heavily on the fact that most of the managers in the casino were black, focused their analysis of Etienne’s discrimination claim on race rather than color. The 5th Circuit noted that while the court had never explicitly recognized “color” as a separate, unlawful basis for discrimination, Title VII is unequivocal on the matter. The statute prohibits discrimination against an individual because of the individual’s “race, color, religion, sex, or national origin.”
The 5th Circuit also rejected Spanish Lake’s argument that Terradot’s statements were mere stray remarks. Instead, the court held that the statements were direct evidence of discrimination. In order to determine whether comments made in the workplace constitute “direct evidence,” or only “stray remarks,” the court examined whether the comments were: 1) related to the plaintiff’s protected characteristic; 2) proximate in time to the challenged employment decision; 3) made by an individual with authority over the challenged employment decision; and 4) related to the challenged employment decision. While the court easily found factors 1, 3 and 4 applicable, it had a harder time assessing whether factor 2 was satisfied, given that Johnson’s affidavit failed to provide specific dates. The court ultimately found that a justifiable inference could be made that factor 2 was satisfied, because the affidavit alleged that Terradot’s comments were made “on several occasions.”
Etienne v. Spanish Lake Truck & Casino Plaza LLC, 5th Cir., No. 14-30026 (Feb. 2, 2015).
Professional Pointer: While claims of race and color discrimination are frequently joined together, it is important to remember that a claim for color discrimination can stand on its own, absent a race discrimination claim. Employer-provided training for employees should incorporate Title VII’s prohibition of discrimination based on color.
Kathiana Aurelien is an attorney with Swerdlow Florence Sanchez Swerdlow & Wimmer the Worklaw® Network member firm in Beverly Hills, Calif.
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