The Labor & Employment Blog is a forum for practitioners and Bloomberg BNA editors to share ideas, raise issues, and network with colleagues.
Monday, April 8, 2013
by Lydell C. Bridgeford
Moore, a director at the NAACP Legal Defense &
Educational Fund, Inc. (LDF), offers an overview of some
pending litigation and hiring policies that have gained the
attention of the legal advocacy group.
"LDF fought for the passage of Title VII of the 1964 Civil Right
Act, and while we as a society have achieved real progress for
African Americans in the workplace, African Americans still face
significant obstacles to equal employment opportunities--many of
the obstacles are structural," Moore said.
Bloomberg BNA: Are there any issues or topics
regarding racial bias or harassment in the workplace that are
floating under the radar, but deserve greater public attention?
Moore: LDF is concerned about enduring
systemic barriers that African Americans face in employment. During the Great Recession, African Americans were more likely to
be unemployed and for longer stretches than white
We are particularly concerned about the overuse and/or misuse of
hiring screens that eliminate qualified African-American job seekers
from consideration for employment, such as overly broad criminal
background checks that consider things like arrests that never
resulted in a conviction or old or minor offenses without giving an
applicant who has paid his or her debt to society the opportunity
This also includes a credit history, which has not been shown to
provide any useful data about an applicant's suitability for
employment generally or for a particular position.
that a credit check is more likely to be negative due to
catastrophic life events like large medical costs or divorce than
In addition, we are concerned about screening requirements that
job applicants be currently employed, because African Americans are
disproportionately unemployed and slow to be rehired as the economy
Bloomberg BNA: What are some court cases
that LDF is closely following?
Moore: We are watching three cases
currently pending before the U.S. Supreme Court. In Oxford Health Plans LLC v. Sutter, the Court's ruling
could affect an employee's ability to litigate class action claims
and expand employers' power to force employees to
We are very concerned that federal courts are steadily narrowing
plaintiffs' ability to sue to challenge and correct policies or
practices that systematically discriminate against African
Americans or other protected groups through rulings like
AT&T Mobility LLC v. Concepcion and most recently
Parisi v. Goldman, Sachs & Co., in the U.S. Court of
Appeals for the Second Circuit.
We are also watching
Vance v. Ball State University, in which the Court has been asked to
decide who is a supervisor within the meaning of Title VII.
Three U.S. circuit courts of appeals and the Equal Employment
Opportunity Commission have said that Title VII applies to
harassment by those whom the
employer vest with authority to direct or
oversee a plaintiff's daily work, while three other U.S. circuit
courts of appeals have limited Title VII's application only to
those harassers who have the power to hire, fire, demote, promote,
transfer or discipline the plaintiff.
There is also University of Tex. Southwest Medical Center v. Nassar, which is now pending
before the Supreme Court. The petition raises the question of
whether Title VII's retaliation provisions, and other
anti-discrimination statutes that use similar language require a
plaintiff to prove but-for causation, or instead require only proof
that the employer had a mixed motive.
Bloomberg BNA: Have you recently filed any
amicus briefs addressing racial injustice in the workplace? And if
so, what sparked LDF's interest about the litigation?
Moore: In the past year, we have filed
amicus briefs in several employment-related matters including
Vulcan Society v. City of New York, in the Second Circuit.
The case is a long-running class action against the New York
City Fire Department (FDNY) for its decades-long discrimination
against Black and Latino firefighters and applicants, which
includes the FDNY's use of a hiring exam that disproportionately
blocked African-American and Latino firefighter applicants from
working for the FDNY.
Our brief argued that the Second Circuit should uphold the
district court's decision finding the FDNY liable for intentional
discrimination and disparate impact violations based on its use of
the two exams and LDF supported the court's ordered
Bloomberg BNA: Besides setting a precedent,
what other factors in a case does LDF consider when deciding
whether to file an amicus brief?
Moore: LDF works to ensure that African
Americans and other racial minorities have the same opportunities
to work, be paid, and advance in their jobs as all other workers
regardless of their race.
As I said, we believe that while African Americans still are
subjected to forms of intentional discrimination because of their
race, more wide-spread--but often harder to prove--are facially
neutral employment practices that have a disparate impact on
African Americans but that are not job-related and serve no
legitimate business function.
Bloomberg BNA: Any final thoughts on combating
racial bias and harassment in the workplace?
Moore: Employers must be mindful of the
make-up of their workforce and of practices that adversely affect
workers of color and women. For example, LDF is concerned
about the growing use of online networks like LinkedIn and Facebook
These networks are essentially technologically-advanced versions
of traditional word-of-mouth recruiting and historically reinforced
"good old boy" networks because research shows that employees
typically refer candidates of the same race and gender. Because African Americans are disproportionately unemployed
and under-employed, they risk being shut out of opportunities for
Employers who rely heavily on internal recruiting methods should
ensure that they are drawing on a diverse pool of candidates and
that such recruiting and hiring practices do not adversely affect
African Americans or other protected groups in violation of Title
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