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Minorities on Pandemic Frontlines Take Race Bias Claims to Court

Nov. 24, 2020, 10:46 AM

Christian Smalls says in the early days of the Covid-19 pandemic, he and dozens of workers of color at an Amazon fulfillment center on Staten Island weren’t able to social distance and continued to work close together even after a co-worker contracted the coronavirus.

Smalls, who was fired from Amazon in March, says in a class action filed earlier this month in a federal court in New York that temperatures weren’t checked, the facilities weren’t deeply cleaned and sanitized, and the workers weren’t given proper personal protective equipment.

Smalls, who is Black, claims that the lack of safety measures put him, and the roughly 60 mostly Black and Hispanic workers he managed, at risk. This treatment stands in contrast to the protections provided to mostly White managers, who were able to distance and stay off the close working conditions on the floor, he says. Amazon has denied these allegations.

Such race discrimination lawsuits are trickling in during the pandemic, as Black and Hispanic workers continue to bear the brunt of the virus through their disproportionate representation in essential jobs at health-care facilities, farms, factories, grocery stores, and public transportation. Employment lawyers say the claims will be challenging to prove.

These include lawsuits filed against meatpacking plants, where reports found almost 90% of workers with the virus are minorities; in Florida, where transit workers of a majority Black workforce say they didn’t receive proper safety equipment; and among Latino farmworkers in Michigan who the government says weren’t protected from the spread.

“Workers of color, namely African Americans and Latinos, are disproportionately out there working and not having the luxury to work from home,” said Rogelio Saenz, a professor at the University of Texas at San Antonio, who studies demography. “For companies, there has to be the teeth in terms of making sure that CDC guidelines are being enforced, otherwise there is the lax situation that could lead to sickness and even deaths.”

Examples Arise

In Florida’s Miami-Dade County, transit workers say in a charge filed with the U.S. Equal Employment Opportunity Commission in May that the majority Black workforce didn’t receive proper safety and personal protective equipment to mitigate the spread of the coronavirus.

The EEOC must process administrative charges under Title VII of the 1964 Civil Rights Act, which prohibits race bias, before workers or the agency can file a federal lawsuit or reach a settlement agreement.

A coalition of activist groups took another tactic and filed an administrative complaint with the U.S. Department of Agriculture to cut off financial assistance to meat companies Tyson Foods Inc. and JBS USA for allegedly engaging in racial discrimination through their workplace policies during the pandemic.

They said in the complaint, filed in July, that the companies have rejected the CDC guidance, including implementing social distancing on meat processing lines, to stop the spread of the virus at their processing facilities.

In a different type of case, Michigan health officials issued a first-in-the-nation order requiring a baseline negative Covid-19 test for employees at many agricultural operations, and isolating housing for migrant workers.

The U.S. Court of Appeals for the Sixth Circuit ruled that Michigan farmers must continue testing migrant workers for Covid-19 before laborers can hit the fields. Farmers sued saying the requirements discriminated against Latino workers and put a strain on the harvests of small farms.

The rules were an attempt to stem the spread of Covid-19 from farm to farm and help a Latino worker population considered vulnerable to the disease because of low earnings and poor access to health care.

In Smalls’s case against Amazon, he held a protest against what he believed were the company’s safety failures. He also claims in the lawsuit that he was terminated in retaliation for speaking out. Michael Sussman, his attorney with Sussman & Watkins, said he thinks that more precautions were taken for the mostly White group on a separate floor.

Amazon told Bloomberg Law in a statement that Smalls was fired for “putting the health and safety of others at risk and violations of his terms of his employment,” referring to the protest and claiming he refused to socially distance.

The company reported in October that almost 20,000 employees in the U.S. tested positive for Covid-19 during a time period of a little over six months. Amazon’s disclosure last month follows criticism from some lawmakers and employees that the world’s largest online retailer was too secretive about outbreaks within its ranks.

Situations such as these could mean more cases that claim race discrimination, Sussman said.

“Those at the greatest risk on the floor were being devalued,” Sussman said. “Whether it’s in meatpacking plants or at Amazon, there could be economic fallout for taking additional measures to protect workers, but that doesn’t mean companies can ignore basic precautions for that inconvenience.”

Hurdles in Court

Racial discrimination can be viable if rules are intentionally applied unevenly or protections are afforded unequally among minority and White workers, academics and attorneys say. Those types of “disparate treatment” claims contrast with “disparate impact” claims, where an otherwise neutral policy disproportionately affects a certain group.

Disparate treatment claims may be hard to prove unless the workers of color were treated differently than White workers who had the same job function, said Robin Shea, a partner with Constangy, Brooks, Smith & Prophete, who advises companies on labor and employment law.

“If the disparate treatment is a function of the jobs, I wouldn’t say it is necessarily a valid racial claim,” Shea said.

She said if the employer purposely sends minority applicants to a certain kind of job and White workers to other more desirable jobs, then that would be an example of a potential claim. She said this is distinct from cases that allege disparate impact because of the nature of their jobs.

“You’d have to have evidence that people of different races were channeled to lower wage jobs,” she said. “Presumably, Latino or Black managers are working under the same conditions of the White managers. There is a huge difference in the type of job you hold, but if the employer isn’t discriminating in hiring and assigning jobs to people then that wouldn’t create the basis for a race discrimination claim.”

Vicki Schultz, a law professor at Yale Law School, agreed the cases can be challenging to prove because the number of employees might be so small that you couldn’t prove a disparity, or prove the reason for the unequal treatment. But she said disparate impact claims shouldn’t be written off.

Referring to the U.S. Supreme Court’s 1977 ruling in Teamsters v. United States, Schultz said the justices previously said “extreme disparities are often a telltale sign of unequal treatment.”

“In this day and age, that can take the form of solicitude for White employees versus neglect and indifference to minority employees,” Schultz said.

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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