White Policeman With African Ancestry Tests Borders of Race Bias Laws

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By Patrick Dorrian

What role, if any, should genetic ancestry tests play in job bias cases? Is coverage under employment discrimination law based on a worker’s perceived race, and whose perception controls, the worker’s or the employer’s? Should protected-class membership even really be needed for a bias claim?

These are just some of the unsettled legal issues that may determine whether Hastings, Mich., police Sgt. Cleon Brown can successfully sue the city, mayor, police chief, and others. Brown says he endured racial harassment and retaliation since he shared with co-workers the results of his ancestry testing, lawyers associated or familiar with the case told Bloomberg BNA.

“There’s no case law I’m aware of holding that a genetic test puts someone in a protected class,” the city’s lawyer, Michael S. Bogren, said. The viability of Brown’s case instead will turn on the question of perception, he said.Brown always considered himself to be and held himself out as white, Bogren said. And that’s the way Brown was always perceived by his co-workers and the city, even after he revealed his genetic tests results, the Plunkett Cooney P.C. attorney said. Bogren is chairman of the firm’s board of directors as well as the managing partner of its Kalamazoo, Mich., office.

Law Professor: Racial Identity ‘Is Fluid’

Professor D. Wendy Greene also sees perception as a possible key to what “could be a very significant case.” But it’s how a worker self-identifies that should control because racial identity “is fluid,” she said.

Racial identification is personal and based on a person’s individualized experiences, she said. Greene teaches at the Cumberland School of Law at Samford University in Birmingham, Ala., and has written extensively on the issue of race discrimination.

The court also may focus more on the allegations of bias made by Brown than on his racial classification, Greene added. That would be consistent with the Equal Employment Opportunity Commission’s view and is the approach being championed by Brown’s attorney, Karie H. Boylan.

Brown’s test results—obtained through online genealogical DNA tester Ancestry byDNA—showed that he is of 18 percent to 33 percent sub-Saharan African ancestry, which came as a surprise to him, according to the amended complaint Brown filed in federal court May 30.

But whether that percentage was “1 or 100” shouldn’t matter, Boylan said.

Racist comments and behavior started after Brown shared his test results, including taunts of “Black Lives Matter” and having a black Santa Claus figurine placed in his workplace stocking at Christmas. These actions came from or were tolerated by officials at the highest reaches of the city government and “were directed” at Brown personally, Boylan said.

Race discrimination laws “are designed to stop” that sort of “incomprehensible” situation, Boylan said. She’s with BoylanLaw P.C. in Rochester, Mich.

The goal of Title VII of the 1964 Civil Rights Act and other job rights laws is to eliminate all biased behavior and decisions from the workplace, EEOC Senior Attorney Advisor Muslima Lewis said. That’s where the agency believes the focus should be, she told Bloomberg BNA.

The EEOC includes as part of its mission protecting the rights of individuals, especially those that are most vulnerable, Lewis said. But “it all comes down to” whether the complained-of conduct occurred “because of” a protected trait like race, she said. Lewis is with the EEOC’s Office of General Counsel in Washington.

City Aims for Quick Dismissal

The case is still in its early days. If it reaches the trial or pre-trial motion phase, it may turn on other questions raised by the city, including whether the alleged harassment was severe or pervasive enough to support a claim or whether the racist comments and behavior was really just workplace “joking” spearheaded by Brown himself.

The city, however, has already signaled its plan to try to have the lawsuit dismissed on the pleading Bogren told Bloomberg BNA June 1. The city’s motion will focus on Brown’s alleged membership in the protected racial class, he said.

To prove intentional race discrimination, a worker must show both membership in the protected class and that the alleged bias was based on his class membership. How, Bogren asked, can Brown establish that the discrimination was “on the basis of” his being black if the city and the alleged harassers never considered him to be in the protected class?

“Telling people he is 18% ‘African’ (whatever that means) does not change the fact that he is still white for purposes of membership in a protected class,” the lawyer said in an email.

But the city is off-point in focusing on the issue of protected-class membership, Boylan said. “I’m not aware of a single case where a court required proof of class membership by DNA testing,” she said.

Society has evolved past the point where minorities and women need to be “protected” from bias, she said. Membership in the protected class isn’t and shouldn’t be the determining factor in whether a race discrimination claim may be pursued in court, according to Boylan.

“The more important issue” in Brown’s case is the retaliation he experienced after objecting to the harassment, she said. And the retaliation got worse after Brown sued, Boylan said.

Perceived-as discrimination, which generally comes up in the context of disability discrimination, is not an issue in the case, she added, because Brown is African American.

Is It Really About ‘Perception’?

But Lewis with the EEOC said the agency has long taken the position that perceived-as bias can occur under Title VII. For example, look at the post-Sept. 11-backlash discrimination cases based on a misperception of a worker’s national origin or religion, she said.

The same analysis would apply to a perceived-as race claim, Lewis said.

If the case does come down to the question of perceived class membership, then Brown’s “self-identification should be the barometer,” Professor Greene said. But she added that she’s not sure this is really a misperception case.

The city and Brown’s co-workers could have perceived him as multi-racial following the disclosure of the genetic testing, Greene said.

Someone who is “mixed race” is also covered by Title VI and the other federal race discrimination laws, Lewis said. The same is true for someone who is discriminated against because of their association with a protected class member, she added.

That’s why proof of protected-class status really shouldn’t be the focus. “That’s not how Title VII is structured,” she said.

Time to Scrap Class-Membership Prong?

There actually “are no such things as protected classes under Title VII,” Greene said. The protected-class membership prong used by courts for ruling on race bias claims is a judicially created “construct” and the law covers anyone who has experienced discrimination.

Because that construct has been in use for 40 or more years and abandoning it would require courts to “rearrange the proof structure” used in race bias cases, it would be “pretty dramatic” for the judge in Brown’s case to completely disregard the class-membership test, Greene said. But perhaps the time has come to scrap it, because “racial identity shouldn’t be a prerequisite to statutory coverage.”

“I understand why courts would be reluctant to do away with” the protected-class requirement, “but this case presents an opportunity to reexamine whether the membership prong really effectuates the goals of” race discrimination laws. Race bias cases “really should be about whether the employer engaged in bias,” Greene said.

If the court doesn’t reach that result here, perhaps a different court soon will in another case. The fluidity a protected trait can have already is being more widely recognized in the gender context and more claims like Brown’s are likely given the popularity of online genealogical tests, Greene said.

Bogren agreed that employers are sure to see “more and more” allegations similar to Brown’s. He, too, said some courts have embraced the concept of worker self-identification—particularly in the LGBT bias context—as well as “the abundance and relative affordability of genetic testing.”

It may be an opening of the litigation floodgates or a gradual build-up, he said, but “we’re going to see this issue coming up” more.

What About That DNA Test?

Another point nearly everyone agreed on is that courts aren’t likely to begin treating DNA tests as proof of protected-class membership.

“I think it’s really problematic to engage in racial determination litigation,” Greene said. It masks the real question of whether “invidious discrimination” occurred. It also “perpetuates the notion that race is a scientifically provable concept.”

Relying on genetic tests “would harken back to the days of the ‘one drop rule,’” Lewis said, referring to the principle of racial classification historically applied in the U.S. that provided that any person with at least one drop of black blood was considered to be African American. Race, she said, is a cultural or social construct.

It would be “a dangerous road” for courts to go down. Letting DNA tests like the one Brown took determine protected-class status “smacks of the racial purity laws” of the old South, Bogren said.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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