The EEOC has an interesting website that provides a “selected list” of pending and resolved lawsuits brought by the EEOC in which racial harassment is alleged. A review of the following list provides a quick compendium of some of the offensive, vulgar and illegal comments and behavior which the EEOC claims that employees have been subjected to in the workplace.

After reading this list, employers might want to sit down and think about instituting training programs for both managers and employees to instill in them a zero-tolerance attitude with respect to harassment, and to sensitize them as to what is offensive and harassing – and illegal.

The EEOC lawsuits include cases where:

  • Managers posted racist imagery and then fired an African-American employee after he complained about a dollar bill taped to a cooler in the restaurant, which had been defaced such that a noose was around the neck of George Washington, whose face had been blackened. On the dollar bill were swastikas and the image of a man in a Ku Klux Klan hood.
  • A supervisor subjected an African-American employee to racially offensive comments such as “coon,” “gorilla,” “porch monkey,” and “n----r.” The employee also heard slurs directed at other ethnic groups, including “raghead,” “sand n----r” and “wetback.”
  • Since at least 2003, management officials frequently referred to black drivers as “n----rs,” East Indian drivers as “Taliban” and “camel jockey,” and a Latino manager as “spic.”
  • A supervisor often kicked an African-American employee in the buttocks and frequently tripped him at work, and made racial comments such as “black folks deserve to get shot,” “black folks are good at basketball because they can steal and shoot” and “blacks are the worst people in the world.”
  • An employee was subjected to slurs including “n----r,” “monkey,” and “boy,” and was confronted by a co-worker with a noose who said: “This is for you. Do you want to hang from the family tree?” A general manager also told the employee “We are going coon hunting, are you going to be the coon?”

These examples paint a pretty grim picture of workplace race relations. Employers have their work cut out for them if they want a harassment-free workplace, and wish to avoid expensive and disastrous lawsuits.
In other news involving alleged employment discrimination, an AARP survey of Massachusetts voters over age 50 has found that more than a quarter report that they – or someone they know – experienced employment discrimination based upon their age.

Enterprisenews.com reports that AARP is trying to “drum up support from U.S. senators Scott Brown and John Kerry for a federal bill” – the “Protecting Older Workers Against Discrimination Act,” which is designed to overturn the Supreme Court’s 2009 Gross decision, which increased the burden on employees in proving an age case.

Another topic involves “obesity discrimination,” which is explicitly prohibited under a few statutes around the nation, while several courts have ruled that obesity is a “disability” or "impairment" under the expanded ADA definition.

The Missoulian has reported that the Montana Supreme Court has just ruled that “if a person’s weight is outside the normal range and affects one or more body systems, it may constitute a physical or mental impairment – even if it’s not a symptom of some underlying disease or health condition (our emphasis).”

This decision, by regarding obesity as an impairment per se even if there is no other underlying condition, is a significant broadening of existing law (albeit even if it is only under Montana law, not the ADA).

One final thought: A lot has been written lately about workplace bias based upon appearance. Obesity bias seems to be the most frequently observed manifestation of this.

A recent report about the EEOC investigating a popular chain of Massachusetts coffee shops known as “Marylou’s Coffee” has brought out a slew of punditry, most of it attacking the EEOC for allegedly “harassing” the chain about what the EEOC considers its alleged policy of only hiring attractive servers.

One blog writer caught our attention when he questioned whether beauty bias is “really a problem worthy of the EEOC’s attention.” He wrote that “[m]ost rational employers are not likely to hire or promote people based solely on their looks. … One wonders how many hiring managers would really select a gorgeous but incompetent applicant over a less attractive but highly-skilled candidate.”

Our oblivious friend apparently is unaware of the research in this area, which clearly demonstrates a beauty bias in the workplace. Indeed, law professor Deborah Rhode reports that about 60% of overweight women and 40% of overweight men report experiences of employment discrimination, and that short males often get “the short end of the stick” when it comes to hiring, promotion and earnings. Moreover, Newsweek Magazine reports that “handsome men earn, on average, 5% more than their less-attractive counterparts (good-looking women earn 4% more).”

Beauty bias is real. However, the issues are real too – how to define it legally, what to do about it, and how to address it. Our friend ingenuously asks “why the fuss?” And he takes the position that “extending the laws against discrimination to cover bias against the unattractive would seem neither feasible nor wise.”

Richard Cohen, a partner with Fox Rothschild LLP in New York, edits the law firm’s blog. He can be reached at (212) 878-7906 or rcohen@foxrothschild.com.

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