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Letter to the editor

Discriminatory actions still alive

As businesses wrestle with employee frictions, judges continue to reinterpret workplace laws.

By SCOTT BARANCIK
Published October 28, 2007

"And so," he said with a flourish, "I'd rather deal with a n----- than a Jew any day!"

Perhaps he expected adulation. Instead, the executive got silence. Because despite her blue eyes and Scandinavian appearance, my grandmother Portia was Jewish.

Today's bosses are rarely so reckless with their words. Thanks to diversity training, demographics, lawsuits and enlightenment, fanny-pinching and racial sermonizing have all but disappeared from the American workplace.

Discriminatory behavior, however, has not. Like ultraviolet light or sound waves, it remains palpable if not visible. Subtle bias helps explain why today's Fortune 500 companies employ just 13 female CEOs and seven African-American chiefs. It illuminates why companies that once refused to hire certain minorities may still decline to promote them.

A similar evolution is taking place in America's courtrooms. It's been 16 years since Title VII of the federal Civil Rights Act was last amended and 15 years since Florida enacted its own statute. But judges continue to refine and reinterpret our workplace laws.

Here are some notable recent cases, drawn from interviews with Tampa Bay area attorneys and DiversityInc articles penned by former Equal Employment Opportunity Commission chairman Gilbert Casellas.

-Equal pay: Lilly Ledbetter always suspected she was earning less than her male peers at Goodyear Tire and Rubber. But not until proof arrived by mail did she file an EEOC complaint. Too bad. In May, the U.S. Supreme Court voted 5-4 to dismiss her suit for being tardy. According to the majority, Ledbetter's 180-day filing window began ticking the moment Goodyear set her final pay raise. But critics like Tampa employment lawyer Cynthia Sass, the immediate past chair of the Florida Bar's labor and employment law section, argue that every paycheck Ledbetter received thereafter was a discriminatory act. The White House has vowed to veto the Lilly Ledbetter Fair Pay Act of 2007, undoing the Supreme Court's ruling. Advantage: employers.

-Race: Leila Sinio, an Asian-American accountant at McDonald's Corp.'s Illinois headquarters, said her supervisors gave her more work and harsher reviews than they did to employees of their own race. The African-American supervisors later fired her. In March, a federal judge declined McDonald's motion to dismiss the subsequent lawsuit without a jury trial. Advantage: workers.

And in July, the EEOC reached a tentative $20-million settlement with Walgreens Co. over allegations that the retailer discriminated against African-American employees. Advantage: workers.

-Sexual orientation and identity: Florida and U.S. civil rights laws skirt sexual orientation or identity, meaning job applicant can be rejected or a worker fired for being homosexual or transgender. A bill sponsored by U.S. Rep. Barney Frank, D-Mass., would extend federal civil-rights protections. "Why should they not be protected?" says Tampa lawyer Greg Hearing, who serves as secretary/treasurer of the Florida Bar's labor and employment law section. "We have a lot of clients that prohibit that type of discrimination even though they're not required to by law. It just makes for a better workplace." Advantage: employers.

Tips for employers

A short list of advice from Winter Park lawyer Jill Schwartz, who sits on the executive council of the Florida Bar's labor and employment law section.

1. You have the right to fire a worker for poor performance. But give the worker a chance to improve first, using a system of progressive discipline.

2. If an employee complains of discrimination, promptly investigate the claim and make any necessary remedies.

3. Letting employees voice their frustrations now may prevent a lawsuit later.

[Last modified October 25, 2007, 14:21:25]