Articles Posted in Race Discrimination

On August 29, 2011, in Bowers v. New Jersey Judiciary, Superior Court of New Jersey, Monmouth Vicinage, New Jersey’s Appellate Division reversed a trial court’s decision dismissing Thomas Bower’s lawsuit against his former employer, the New Jersey Judiciary. Thomas Bowers, an African-American, worked for the New Jersey Judiciary as an Information Technology Analyst. He claimed the Judiciary failed to promote him to Acting IT Manager and subjected him to a hostile work environment because of his race. Mr. Bowers was the only African-American in Monmouth County’s IT Division. In fact, there were no other African-American IT managers in the entire New Jersey Judiciary, and only one other racial minority, an Asian Indian.

Beginning in July 2005, Mr. Bowers’ supervisor took an extended medical leave. Shortly after, the Judiciary asked Mr. Bowers to take over the duties of IT Manager. This decision was subsequently recommended by Monmouth County’s Assignment Judge. Mr. Bowers performed the duties of the IT supervisor for approximately 8 months.

But when the Judiciary sought to formally appoint him as its Acting IT Manager, the Assistant Director of Technical Services and Operations, Jonathon Massey, gave a very negative opinion of Mr. Bowers, including claiming he “doesn’t understand simple technical things,” he “is lazy and stands around and watches others do the work,” and that another supervisor described him as a “cocky, arrogant, lazy, weasel, creep” who “does what he wants, doesn’t tell the truth” and has a “chip on his shoulder.” Not surprisingly, Mr. Bowers was not formally named the Acting IT Manager. However, informally he continued to perform the responsibilities of the IT Manager until April 2006, when the Judiciary named Troy Fitzpatrick its new permanent IT Manager.

After Mr. Fitzpatrick became the IT Manager, he gave Mr. Bowers assignments that were normally given to lower level and less senior IT employees, like answering Help Desk calls and creating a Help Desk manual. Mr. Fitzpatrick told Mr. Bowers that he could not assign work to anyone else, and also told him he could not leave his desk for any reason unless he found someone else to cover the Help Desk. Mr. Fitzpatrick also sought information from other employees about Mr. Bowers’ work ethic, and was always short and curt when he spoke to Mr. Bowers, as if he did not want to speak to him. In comparison, Mr. Fitzpatrick treated a newly hired white male employee much better than Mr. Bowers, such as giving him less work and not limiting his ability to leave his desk.

The trial court dismissed Mr. Bowers’ race discrimination and harassment claims because he was not subject to racial epithets and there was no direct evidence of race discrimination, he did not have enough evidence to prove either of those claims. But the Appellate Division disagreed. It explained that “discrimination rarely rears its ugly head directly. Rather, it typically manifests itself in subtle ways.” In particular, it found that a jury could find that Mr. Massey’s extremely negative recommendation was false and discriminatory. It noted that Mr. Massey admitted he knew very little about Mr. Bowers. Instead, it ruled that only a jury can decide whether the Judiciary’s decision not to make Mr. Bowers its Acting IT Manager was discriminatory.
Next week, I will discuss Mr. Bowers’ retaliation claim. In a subsequent article, I will discuss his claim that the judiciary failed to accommodate his disability.

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The statute of limitations under the New Jersey Law Against Discrimination (“LAD”) is two years. Ordinarily, that means you must file your lawsuit within two years after (1) a “discrete act” of discrimination such as being fired, demoted, or suspended, or (2) the last act of a pattern of harassment. But on December 10, 2010, the New Jersey Supreme Court ruled that an exception called the “discovery rule” can extend the LAD’s statute of limitations. The discovery rule applies when an employee is unaware that he suffered an injury, or unaware that someone else is at fault for causing his injury, until after the statute of limitations has expired.

The case, Henry v. New Jersey Department of Human Services, involves an African American employee, Lula Henry, who was hired for an entry-level nursing position with Trenton State Psychiatric Hospital in April 2004. Ms. Henry claims Trenton State did not place her in a more senior position because of her race, in violation of the LAD.

According to Ms. Henry, she first suspected she was the victim of race discrimination in 2004, but did not have any concrete evidence at the time. It was not until 2006 that she learned that (1) another black nurse had filed a race discrimination lawsuit against Trenton State, and (2) Trenton State had hired a Caucasian nurse with the same credentials as her for higher level job classification, which was inconsistent with Trenton State’s explanation for why it did not place her in a higher level position.

In July 2007, Ms. Henry filed a race discrimination lawsuit against the New Jersey Department of Human Services, its Acting Commissioner, Trenton State Psychiatric Hospital, and Trenton State’s Chief Executive Officer. The trial court dismissed her case based on the statute of limitations since she filed her case more than two years after the alleged discriminatory actions. On appeal, the New Jersey Appellate Division affirmed the dismissal of her case.

But the New Jersey Supreme Court disagreed. It found the fact that Trenton State gave Ms. Henry a non-discriminatory explanation for why it placed her in an entry-level position may have led her not to pursue the issue until she learned new information that caused her to believe Trenton State’s explanation was false. It found the circumstances could be enough that the LAD’s two year statute of limitations would not begin until Ms. Henry learned the new information that supported her suspicion that Trenton State had discriminated against her because of her race. As a result, it sent her case back to the trial court to conduct a hearing. At that hearing, Ms. Henry will try to prove she did not have a “reasonable suspicion” of race discrimination, and that a reasonable person in her position could not have discovered a basis for a discrimination claim through reasonable diligence. If she is able to prove this, then she will be able to proceed with her discrimination case even though she filed it more than two years after the alleged discrimination occurred.

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What is a Disparate Impact Case?

On May 24, 2010, the United States Supreme Court decided another employment law case. Specifically, in Lewis v. City of Chicago, the Supreme Court clarified how to determine if an employee has met the filing deadline to bring a “disparate impact” discrimination case under federal law.

A disparate impact case is one in which an employee claims the employer’s policy has an unequal negative impact based on an unlawful reason. Unlawful factors include race, national origin, gender, age, pregnancy or disability among others.

For example, an employer might use a test to decide which employees it hires or promotes. Even if the employer has no intent to discriminate, the test might disproportionately select fewer employees in a legally protected group. For example, if a significantly lower percentage of African-American or Hispanic job candidates are hired or promoted based on the test results, then the test might be considered to have a disparate impact based on race. A job criteria that has a disparate impact based on an illegal factor violates the law unless the company can prove it has a “business necessity” for using the criteria.