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Dec. 6 — Costco Wholesale Corp. permitted discrimination and harassment of a black female worker married to a white man, according to a federal lawsuit filed in Georgia ( Speight v. Costco Wholesale Corp. , S.D. Ga., No. 16-00199, complaint filed 12/5/16 ).
Levara Speight brought associational discrimination claims under Title VII of the 1964 Civil Rights Act and the Civil Rights Act of 1866 (42 U.S.C. § 1981) against Costco, in addition to race bias, harassment and retaliation claims.
She alleged that a supervisor and a co-worker, who are both black, began to harass her after they discovered that her husband is white. She claimed that she was told, “You’re not black,” that she acted “like a 16-year-old white girl,” and that she liked “white people music,” such as Billy Joel. Speight, a pharmacy technician, said she was demoted to a cashier position after she complained about the harassment.
Associational bias claims based on race aren’t common, employment law practitioners told Bloomberg BNA Dec. 6.
“I don’t see them very often,” Eric B. Meyer, a management attorney with Dilworth Paxson in Philadelphia, said. Meyer, who is a partner in the firm’s Labor and Employment Practice Group and publishes The Employer Handbook blog, isn’t involved in the Costco case.
If an employee is in a category protected by Title VII, the employee generally would bring a discrimination claim based on his or her own protected class, as opposed to whom the employee is associating with, Meyer said.
Speight’s attorney, John P. Batson of Augusta, Ga., similarly told Bloomberg BNA that associational bias doesn’t “happen much.”
“But it does happen,” he said. “And it’s prohibited.”
Costco representatives told Bloomberg BNA they had no comment on the matter.
Brian McGinnis, a management attorney with Fox Rothschild in Philadelphia and an author for the firm’s Employment Discrimination Report blog, observed that Title VII doesn’t include express language prohibiting associational bias.
Those types of claims are seen more often in cases under the Americans with Disabilities Act, which has specific language barring discrimination based on an employee’s relationship with a disabled individual, said McGinnis, who isn’t involved in the Costco case.
However, some courts have recognized associational bias claims under Title VII, he said.
Currently, the Second, Fifth, Sixth and Eleventh circuits have explicitly ruled that such claims are permissible. The Eighth Circuit declined to rule on the issue in February.
As society becomes more diverse, it’s an “open question” as to whether that “will yield an increase” in associational discrimination claims, McGinnis said.
These cases also raise questions about what types of associations will be protected, he said. For example, does the protection extend to only marriages, or are dating relationships covered as well?
“There’s certainly some room for development in the case law,” McGinnis said.
Meyer of Dilworth Paxson observed that associational bias arguments have been raised in high-profile sexual orientation discrimination cases, including Hively v. Ivy Tech Community College (7th Cir. en banc, No. 15-1720).
The full U.S. Court of Appeals for the Seventh Circuit heard oral argument in Hively Nov. 30. The judges are considering whether Title VII’s prohibition against sex discrimination also protects against bias based on sexual orientation.
One of the arguments made on behalf of Kimberly Hively, a lesbian adjunct professor, is that sexual orientation bias constitutes associational discrimination. In other words, if Title VII’s race bias protections would protect a white female fired for romantically associating with a black male, then the law’s sex bias protections also should apply to workers who have romantic same-sex relationships.
Judge Frank Easterbrook during oral argument for Hively also discussed Loving v. Virginia, 388 U.S. 1 (1967), the landmark U.S. Supreme Court decision that voided laws prohibiting interracial marriage because they were discriminatory. Easterbrook alluded to the likelihood that sexual orientation discrimination would be sex discrimination based on the reasoning in Loving.
To contact the reporter on this story: Jay-Anne B. Casuga in Washington at firstname.lastname@example.org
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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