From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...
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 email@example.com
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)