This plaintiff is a doctor who alleged that her employer violated Title VII because it was honoring patient requests to be treated by a white doctor. The Court of Appeals says she has no case even though she has alleged a discriminatory motive.
The case is Kairam v. West Side GI, Inc., a summary order issued on December 9. The facts are not clear, but it looks like plaintiff's employer had a professional relationship with another medical practice, known as the Gould Practice, which sent patients over to plaintiff's employer. Dr. Distler supervised plaintiff. The complaint alleges that plaintiff asked why Dr. Distler was not referring her any patients. Dr. Distler said that the Gould Practice was a "boutique practice" and that those patients wanted to see a doctor who "looks like" Dr. Gould, a white male.
This is a serious allegation. The Court of Appeals (Bianco, Pooler and Choe-Groves [Court of International Trade]) says this allegation supports a conclusion that defendant had a discriminatory motivation. The Court of Appeals does not develop this further, but there is a line of cases that says an employer cannot cater to the customer's racist preferences.
What loses the case for plaintiff, however, is that she has not alleged an "adverse employment action," which legalese for "plaintiff has not asserted that she suffered any harm from the discriminatory motivation." Plaintiff does not allege that honoring these patient demands cost her any compensation or significantly diminished her responsibilities. In most cases that do not allege a hostile work environment, the loss of money or prestige will give you a case. Without monetary or other tangible loss, being treated in a racist manner will not give you a case. At least not under Title VII, which has strict requirements to prove an adverse employment action.
This case arose in New York City, so I wonder if plaintiff might still win under the New York City Human Rights Law, which does not follow Title VII's adverse action requirements. Under the City law, plaintiff has a case if she was treated "less well" than other employees because of her race. That lenient standard is probably enough for plaintiff to proceed with her case. Plaintiff most likely pled claims under the City law, but the district court declined to exercise jurisdiction over them because it dismissed the federal claims.
KINGSTON – The US Court of Appeals on Friday reinstated a racial discrimination lawsuit filed by five Ulster County corrections officers who claim the county jail was rife with racist comments and abuse from coworkers and supervisors.
The appellate court ruled that a jury must determine if the officers endured a hostile work environment and whether the county is legally responsible for the work environment.
The plaintiffs are Norman James, Tyrone Brodhead, Alphonso Lacey, Pamela Lancaster and Timothy Ross. The racist comments took place in 2007-2008 and 2014-2015, when Paul Van Blarcum was sheriff, prior to the 2016 election of current Sheriff Juan Figueroa.
The Second Circuit Court of Appeals stated, “The record is replete with evidence of racially derogatory language from coworkers and supervisors. There is little doubt that many, if not all, of the comments made – such as the naming of a police K-9 ‘Mandingo Hunter,’ Wenzel’s joke about black men jogging, and Officer Brook’s joke that black officers or ‘niggers’ could not become sergeants — are egregious. Some of these comments, such as the references to Lancaster as ‘Buckwheat,’ were made by a sergeant.” Other evidence included a “colored girl” comment by Sgt. Polacco and use of the words “nigger” and “jigaboo.”
The court observed that “In total, there were at least 12 instances of racial slurs during the 2014-2015 and 2007-2008 period, though there is evidence that some of these comments had also been made previously or were made ‘constantly’ and ‘all the time.’”
The jury may find the county liable for the work environment, the court ruled, because “there is no evidence that after [plaintiffs] reported a number of incidents . . . anyone spoke with the officers who made these comments.” In addition, “while in a limited number of instances [plaintiffs] did not report slurs, County Personnel Director Sheree Cross did learn of some of these incidents. There is no evidence she investigated, and awareness followed by a failure to act can result in a finding of liability.”
The five plaintiffs are represented by Nathaniel Charny, of Charny & Wheeler in Rhinebeck, and Stephen Bergstein, of Bergstein & Ullrich, LLP, in New Paltz.
In a joint statement Charny and Bergstein said, “This decision reminds us that racism has no place in a public facility. The law prohibits racial hostility in the workplace. The racial harassment at the Ulster County Jail was extensive. We look forward to presenting our evidence to a federal jury on behalf of our clients, who have suffered this racism for years.”