In Brown v. Board (U.S. 1954), the United States Supreme Court ordered that public schools across the nation integrate, supposedly putting an end to the segregation of schools on the basis of race. Yet, Minnesota spent the better part of the next thirty years attempting to achieve that end.
In 1964, Title VII of The Civil Rights Act prohibited discrimination (by covered employers) on the basis of race, color, religion, sex, or national origin. In light of these measures, one might expect that in 2012 matters of racial inequality would be more fully addressed. Yet, Minnesota Public Radio reported Tuesday that the Twin Cities (again) lead the nation in the gap between black and white unemployment. Excerpts from the report by Curtis Gilbert:
…of 19 major metropolitan areas, the Twin Cities metro area has the widest gap in unemployment rate between blacks and whites. …the jobless rate for African Americans in the Twin Cities averaged nearly 18 percent, more than three-times that of white residents. That’s by far the biggest disparity of all the metropolitan areas covered in a study from the Economic Policy Institute. …”The whites are sort of above average for whites. The blacks are doing somewhat below average for blacks,” Austin said. “And lower education attainment, higher unemployment rate. So you see this huge disparity… “We’re on top in a number of disparities categories: health statistics, income disparities, poverty.”
One cannot help but wonder to what degree racial discrimination still accounts for such disappointing news. Whether blatant or latent, racial discrimination is illegal; and various mechanisms for recourse exist for employees who have been discriminated against.
In disparate treatment cases, employers are found to be liable for racial discrimination if the employer treats employees in similar situations differently based upon race. As an example, if an employer fires John for being late but does not fire Jane for being late, and the only reason for the difference in treatment is because of John’s race, that employer will be held liable for the discrimination. In disparate treatment cases, employment lawyers seek to highlight facts that show obvious racial bias, prejudice, etc. Such facts include things such as a supervisor’s use of derogatory slurs, or something as subtle as a supervisor consistently ignoring employees of a specific race in the break-room.
In disparate impact cases, employers are found to be liable for racial discrimination if the pattern and practice of the employer is such that there is an adverse and differing impact to employees of different races. So, even if there is nothing that blatantly suggests racial discrimination, an employer can be held liable if there is a disproportionate difference in how their employees are affected. Discrimination in hiring practices is one scenario that is more likely to be a disparate impact case than a disparate treatment case. Although an employer may appear to be facially neutral in its hiring practice, even subconscious racism by a hiring manager, for example, can lead to a disproportionately negative impact on racial minorities; the report cited by MPR suggests that there may be a prevalence of such issues in Twin Cities workplaces.
It is imperative that Minneapolis and St. Paul employers recognize that racial discrimination, whether intentional or not, is still alive and well in Minnesota, and that businesses take active steps to prevent such discrimination in their human resources practices; those that don’t are likely to find themselves on the defending side of discrimination lawsuits in federal court.
Joshua Newville is an attorney and mediator based in Minnesota. He litigates employment and civil rights cases, serves as a mediator for civil disputes, and provides employment law advice.