Race Discrimination 2002 Update
What a Long Strange Trip It’s Been
Harvey A. Schwartz
Rodgers, Powers & Schwartz
111 Devonshire Street, Suite 400
Boston, MA 02109
The good news in regard to race discrimination law in Massachusetts is that it is still illegal to discriminate against people on account of their race. Massachusetts juries return the largest discrimination verdicts in race discrimination cases, at least if the defendant is the MBTA. However, except for race discrimination cases by African-Americans against the MBTA (a species of litigation as specialized as admiralty or patent law) the hottest race discrimination claims are being brought by disgruntled white folks – firefighters, police officers, school kids and college professors – attempting to tug the legal pendulum back their way. And, to a great extent, they are succeeding.
Developments in the law
Race discrimination claims in employment continue to be the bread and butter of employment discrimination law; race cases follow the current state of burdens of proof for employment discrimination claims in general, with no special permutations for race discrimination cases. If any trend is apparent, it is the move toward going forward on the retaliation aspect of these claims rather than the more-difficult-to-prove substantive discrimination claim. An excellent example of the tactical value of such a decision was seen several years ago in Scott-Harris v. City of Fall River, 134 F.3d 427(1st Cir. 1997), rev'd on other grounds sub nom., Bogan v. Scott-Harris, 523 U.S. 44 (1998). There, an African-American city administrator’s job was eliminated after she protested against what she viewed as racially discriminatory conduct by a subordinate. Following a hotly contested trial before Judge Saris, the jury found that the plaintiff was not fired because of her race, but was fired because she protested against racism. If there is a trend in traditional race discrimination litigation it is the move toward such secondary – but easier-to-prove – theories, rather than the hot button issue of out and out racism.
Blatant race discrimination remains a powerful claim, of course, and Massachusetts jury verdicts and reported settlements in recent years in such cases have been large, including the following examples:
In addition, the MCAD reported orders and settlements for lesser amounts in dozens of race discrimination claims.
The most startling trend in race discrimination litigation, however, has been the success achieved by white plaintiffs alleging reverse discrimination. Recent verdicts and settlements include the following examples:
Boston police and fire department
Is the pendulum swinging back?
White police officers and fire fighters in Boston have two significant race discrimination cases ongoing in the federal court for Massachusetts, both of which had significant decisions in recent months: Quinn v. City of Boston, 2002 U.S. Dist. LEXIS 9573 (May 17, 2002) and Cotter v. City of Boston, 193 F. Supp. 2d 323 (March 21, 2002). In both of these cases white officers and would-be firefighters challenged their departments’ affirmative action hiring and promotion systems. In the briefest of summaries, the white police officers won what may or may not be a pyrrhic victory and the white firefighters, for the moment, lost.
In Quinn, decided by Judge Stearns on cross motions for summary judgment, white applicants for entry-level firefighter positions challenged the continuing viability of a 1974 consent decree requiring Boston to hire new firefighters on a one-to-one white-to-minority ratio. Rejected white candidates challenged what Judge Stearns called the "shelf life" of the 1974 consent decree, saying enough time has passed that the remedial phase of affirmative action is completed and any further race-based hiring is simply racial discrimination. Judge Stearns rejected their arguments, saying that while their statistics might be accurate, the consent decree said what it said and, since it’s strict numerical goals have not yet been met, the decree stays in place and justifies race-based hiring of new firefighters. The decision, of course, is being appealed.
Judge Young did not look so kindly on the Boston Police Department in Cotter. There, eight white police officers challenged the preference given to black officers who received the same score as the white officers on a promotion exam. In a truly Youngian opinion rife with references running the gamut from the Nazi citizenship laws to Tiger Woods’ ethnicity as a "Camblinasian, the court retained jurisdiction over future promotions in the Boston Police Department and ordered the department in all future promotions "to formulate its personnel decision and then petition the Court for instructions concerning whether such a racially motivated decision passes constitutional muster."
These two major public employee reverse discrimination decisions can be seen as harbingers of more such cases in the future, as consent decrees from the 1970s and 1980s show signs of wear. In this same light, another blast from the past plaintiff in the reverse discrimination field, Adarand Constructors, returned – momentarily – to the Supreme Court in Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (2001). Seven years ago, the company received a landmark decision in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) , in which the Court held that strict scrutiny governs whether race-based classifications violate the equal protection component of the Fifth Amendment's Due Process Clause. See id., at 235 ("Federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest"). The Court granted certiorari to review the actual application of strict scrutiny to racial preferences, then changed its mind on more intensive review of the record, leaving for another day just where the limits of "strict scrutiny" of government affirmative action programs lie.
Plaintiffs do better in cases alleging reverse discrimination by private employers. Absent something as concrete as a consent decree or a prior judgment finding racial discrimination, private employers can no more discriminate in favor of one race than another. Voluntary affirmative actions plans or racial preferences in hiring by private employers are risky and subject the employer to liability. Private employers should take caution from the First Circuit’s rejection of the Boston Public Schools’ racial preferences for admission to Boston Latin School. In Wessmann v. Gittens, 160 F.3d 790, 808 (1998), the court said,
Other interesting legal tidbits
Discovery rule – Judge Gants, in an interesting statute of limitations case, applied the discovery rule from tort law to toll the statute of limitations in a race discrimination case in Soriano v. City of Lawrence Police Department, 2000 Mass. Super. LEXIS 640, permitting a Hispanic police sergeant’s discrimination claim to proceed even though it was filed twelve years after he was passed over for promotion. The MCAD complaint was filed within six months of when the plaintiff first learned of the discriminatory reason for being rejected for promotion.
Sufficiency of the evidence of racial bias – In a fact-intensive analysis of the sufficiency of the evidence of racial bias in a hostile workplace claim, Magistrate Neiman denied the defendant’s summary judgment motion in Gedeon v. Daniel O'Connell's Sons, Inc., 2001 U.S. Dist. LEXIS 22435, adopted, 2001 U.S. Dist. LEXIS 15808 (D. Mass. Sept. 28, 2001). There are few recent reported Massachusetts cases in which a court analyzes the weight of evidence of a racially hostile workplace in the detail provided in this case. If nothing else, it should be read as guidance in deciding whether to accept a hostile environment claim in which the bad conduct is relatively minor but cumulative.
The burdens of proof for race discrimination claims are identical to other species of employment discrimination. The paucity of reported race discrimination cases in recent years can either be viewed as an indicator that race discrimination is disappearing from Massachusetts workplaces (care to buy a bridge in Brooklyn, if you believe that one?) or, by the more cynical, that race discrimination cases are so obviously losers that employers tend to settle them rather than roll the dice at trial. The blockbuster jury verdicts against the MBTA similarly can be seen as indicators of how greatly Massachusetts juries detest race discrimination, or, by the more cynical, as sui generis, prompted more by anger at the MBTA than at racism in general.
As race discrimination trials and appeals by minority plaintiffs become increasingly rare, it can be expected that backlash race discrimination claims by whites, particularly white males, will test the limits of affirmative action and minority hiring preferences, either by politically correct institutions, such as colleges and universities, or by litigation-weary corporations attempting to avoid law suits by minority employees. Employers can expect to become increasingly squeezed between the rock of discrimination suits by minority employees and the hard place of reverse suits by white workers, providing counseling opportunities galore for those of us on the defense side of employment law, and potential pots of gold for those of us allying with plaintiffs in these cases.