Articles Tagged with civil rights

Passed 50 years ago in June, Title IX has had a profound and widely-recognized impact on girls’ and women’s sports. But Title IX did not only offer parity in sports. It has been instrumental in compensating victims of discrimination and harassment by teachers, coaches, professors and other students. Until now. The Supreme Court quietly eviscerated this right just before Title IX’s anniversary, with little fanfare or public outrage. In a decision superficially limited to the Rehabilitation Act and the Affordable Care Act, the Court eliminated damages under Title IX – and Title VI — for emotional distress.

Victims of sex and gender-based discrimination and harassment have successfully used Title IX to obtain relief when recipients of federal funds have failed to enforce the law. In Hawaii, for example, a jury awarded $810,000 after a ninth-grade girl with the intellectual ability of a second grader was raped by an older boy from her class. The girl’s mother previously had expressed concerns to the school about this student. In California, a male student was alleged to have pressured a middle school girl into sending nude pictures and used those pictures to blackmail her into performing oral sex; students then posted pictures on social media of the female student performing oral sex. She obtained a $2 million dollar settlement. In Florida, a jury awarded a single plaintiff $6 million dollars after a teacher sexually abused her during her junior and senior years in school. The abuse included child pornography and forcible kissing and touching. The school had previously received reports of sexual abuse but failed to investigate. In Colorado, a school district settled a claim for $5 million dollars. A teacher was alleged to have sexually abused a student when she was nine years old. The school knew the teacher had a history of inappropriate conduct but failed to act to prevent the abuse. Based on the Supreme Court’s recent ruling in Cummings v. Keller Premier Rehab, were claims like those brought today under Title IX, there could be no award for their depression, their suicide attempts, their eating disorders, their missed classes, their trauma.

In 1972, Congress enacted Title IX so that federal funds would not support discriminatory practices. The law bars educational programs or activities that accept federal funds from engaging in discrimination on the basis of sex. In other words, schools must take action to prevent and address sexual harassment and discrimination. Failing to do so could lead to the loss of important federal dollars (although in reality, that rarely if ever happens). Title IX was patterned after Title VI of the Civil Rights Act of 1964, which prohibits discrimination by funding recipients with respect to race, color and national origin. Although neither statute expressly provides victims of discrimination with the right to sue in court, in 1979, after a female student alleged she was denied admission to medical school because of her sex, the Supreme Court held in Cannon v. University of Chicago, that Title IX (and Title VI) allowed her to sue in court. Over a decade later, in 1992, when a high school student sued alleging her teacher had sexually harassed and abused her, the Court confirmed that the right to bring suit included the ability to obtain money damages. This apparent expansion of rights may have peaked in the mid-90s: soon after, in its 1998 decision Gebser v. Lago Vista Independent School District,, the Court restricted when schools could be held liable for harassment.

University Systematically Whitewashed Valid Harassment Complaints by Black Employees

University of Illinois at Urbana-Champaign employees Derick Brown, Atiba Flemons, and Jeffrey Taylor are suing the University for racial discrimination and racial harassment. Central District of Illinois, 2:19-cv-02020. They have filed a motion to certify a class of thousands of Black employees seeking a Court Order ending illegal racial harassment. The motion shows, based on records produced by the University, that over the class period of six years the University has corroborated exactly zero complaints of discrimination against Black employees.

Mr. Brown, a machinist at the University’s Facilities & Services department, whose initial complaint in 2017 concerned a coworker’s donning a KKK-style hood while other coworkers, including Mr. Brown’s supervisor, looked on and laughed, testified to the University’s indifference: “How can you not say that’s racial when the KKK hood over a guy’s face that are all white? And that’s not racial to a black man? And they find it not racial?

Friedman & Houlding LLP represents Weldon Moore, an African American truck driver who worked at EXCEL USA in Baton Rouge, Louisiana. As alleged in the Amended Complaint the Superintendent of EXCEL’s operations at Louisiana Pigment plant in Lake Charles racially harassed Mr. Moore, often calling him and other African American employees “Black motherf*****”, telling Mr. Moore that he wished he could call his African American coworker the “N” word, and repeating a disgusting “joke”: “Mo, if a Black man and a Mexican man fell off a high-rise building, who do you think would hit the ground first?” When Mr. Moore (known as “Mo”), replied out of shock, “I don’t know, boss,” the Superintendent laughed and said, “Who gives a f***?

As alleged in the Amended Complaint Mr. Moore complained first to Human Resources, in the presence of the EXCEL Louisiana Pigment plant project manager. The Human Resources representative said that she would keep his complaint on file. But neither Human Resources nor the EXCEL project manager engaged in any follow-up inquiries. The racial harassment not only continued, but Mr. Moore’s complaint to HR also resulted in retaliation from the Superintendent. He cut Moore’s  days. When Mr. Moore spoke up about these changes to his boss, his boss simply replied, “You Black motherf*****, if you don’t like it, then drag the f*** up,” which Mr. Moore understood to mean “quit.”

 In his next complaint Human Resources forced Mr. Moore to explain the racial harassment in the presence of his harasser, the Superintendent. The Superintendent stood up and screamed at Mr. Moore, “you mother*****” and stormed out of the meeting. Incredibly, he kept his job. When Mr. Moore returned to his work station, a member of management pulled up in his truck, handed him his business card, stating, “I don’t ever want you to let him or anyone else talk to you that way. If he does that again, call me.”

A federal judge in the Western District of Oklahoma has denied Northeastern State University’s motion to dismiss a former employee’s claims of sexual harassment and retaliation under both Title VII and Title IX, after a coworker allegedly put his hands down her pants. 

 Deanie Hensley, the plaintiff in the action, worked for NSU in Tahlequah, Oklahoma for approximately 13 years. She alleged in her First Amended Complaint that multiple supervisors and co-workers engaged in sexually inappropriate behavior over that time, including sharing sexual cartoons and remarking on women’s bodies, but Hensley’s complaints resulted in no changes. After her complaint about a particular supervisor resulted in retaliation including stripping Hensley of job duties, she decided to take a position with a contract company that provided the university’s mail services. The joint employment with NSU and this company allowed her to continue working at NSU and using her expertise and familiarity with the NSU campus and personnel. However, Hensley alleges that one of the coworkers who had a habit of making offensive remarks sought her out on the job, then: “reached across the counter and put his hands down her jeans, with the backs of his hands against her stomach. He reached down to her panty line. He then pulled her belt buckle and shook it, commenting on how she had been ‘losing weight.'”  

 Shaken and traumatized by the assault, Hensley alleges that she complained to NSU campus police. Following even more complaints that the harasser was following Ms. Hensley and approaching near her in violation of a protective order, Hensley alleges in her Complaint that Steven Turner, NSU’s President, threatened the contract company with the loss of its contract if it did not remove Ms. Hensley from the NSU campus. Ms. Hensley alleges the inevitable result of this threat would be that she would lose her job–and that in fact, she did lose her job as a consequence. 

Marcus Staples worked for Advanced Technology Recycling, an electronics de-manufacturing company headquartered in Pontiac, Illinois, with seven locations across the country. In Staples’ Complaint filed in the United States District Court for the Eastern District of Virginia, he alleges that whenever the company’s project manager was on site, he referred to Staples and Staples’ African-American coworkers as “boy”—while referring to white co-coworkers by their given names. One of Staples’ coworkers has stated under oath that he “was so upset” by the manager’s “offensive racism, I frequently complained to [our supervisor] about it myself. During 2019, I complained to [her] about [the] behavior on approximately a weekly basis, either on my own or with co-workers. She said she would take care of it, but nothing changed to remedy the situation.” 

 The conduct escalated: Staples alleges that the manager derisively compared him to a monkey, and when Staples was offended and upset, the next day the manager handed him a baggie of fried chicken in front of multiple coworkers as a mocking “apology.”  

 Staples alleges in his Complaint, and multiple co-workers confirm under oath, that when the manager returned to the worksite after these incidents, he resumed calling Staples and his African-American coworkers “boy” —  the same as before. Staples alleges that the company went on to retaliate against him for filing an EEOC charge, baselessly disciplining him. When he refused to work through the EEOC to try to settle the charge [which indicated that Staples planned to sue], Staples alleges ATR fired him. 

Friedman & Houlding LLP clients Derick Brown, Atiba Flemons, and Jeffrey Taylor, have brought a Class Action suit on behalf of Black employees at the University of Illinois at Urbana-Champaign, alleging that the University has a pattern or practice of tolerating racial harassment against its Black employees, and that the office charged with investigating complaints of racial harassment is itself discriminatory in its handling of complaints.

One former Office of Access and Equity (OAE) Investigator, a non-party witness in the lawsuit, testified that she “was working in a hostile work environment,” describing the reasons that she left her employment at OAE (formerly ODEA), the office charged with investigating complaints of harassment and discrimination at the Urbana-Champaign campus. Referring to Director of OAE, Heidi Johnson, the witness testified, “It was my perception and I believe the perception — because it was told to me by other colleagues, that Heidi favored our white colleagues.”

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The witness testified that she did not think Director Johnson treated employees of color in OAE equitably, describing Johnson’s indifference on issues concerning diversity and inclusion and personnel actions driven by bias, including stripping away the title of the witness, a person of color, without a stated basis, favoring White employees with less experience for promotions, and issuing the witness with a baseless disciplinary action. This treatment ultimately drove the witness to leave the University of Illinois after working many years as an OAE investigator.

A Tennessee woman has filed a Complaint in Davidson County Chancery Court alleging that her employer, Motel 6, did nothing to protect her from harassment based on her HIV positive status–and that she was summarily fired for taking action after the hotel was sold to a franchisee. Friedman & Houlding LLP represents the Plaintiff, Jane Roe, who is proceeding under a pseudonym to protect her personal health information.

Roe worked at a corporate-owned Motel 6 location. When she began taking a medication that could cause dizziness, she informed the two on-site managers about her HIV status so they could take appropriate precautions to protect their own health in the event she fell and was injured on the job.

Roe alleged that one of the managers proceeded to engage in a campaign of harassment based on Roe’s HIV status, including telling numerous coworkers as well as hotel guests that Roe “has AIDS,” telling a pregnant co-worker not to use the employee restroom after Roe, leaving Clorox wipes in the bathroom as a reference to Roe being “unclean,” and mocking Roe by asking about her health, making comments like “you look swollen today, are you sure your health is okay?” Roe alleged that the conduct even escalated to harassing phone calls on the hotel line while Roe was at work.

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