Amazon, Black Worker Spar in Covid-Based Race Bias Class Appeal

A Black former Amazon employee will tell the Second Circuit Tuesday he’s qualified to lead a class race bias lawsuit alleging that the Covid-19 safety precautions provided to the mostly minority line workers at his Staten Island factory were inferior.

Christian Smalls argues that he has standing to sue and represent the proposed class of line workers. Smalls will also try to revive claims that his individual rights were violated when he was fired following a protest over Covid-19 safety that he led outside of the warehouse.

Smalls is the co-founder of the Amazon Labor Union, which workers at a New York warehouse voted to join in April. His lawsuit here doesn’t include claims directly related to the union activities.

The fact that Smalls is a member of a minority and worked at the same facility as the line workers isn’t enough to allow him to lead the proposed class, Amazon.com Services LLC and Amazon Inc. say. Smalls’ November 2020 lawsuit alleges he was a management associate and that the company showed greater concern for the safety and health of managers than for line workers during Covid-19’s early days.

That means Smalls wasn’t a member of the class he seeks to represent, Amazon says.

A trial court ruled that he lacked standing to represent the workers, in part because he no longer works for Amazon, Smalls says. But he has standing to seek retrospective relief because all potential class members sustained adverse changes to their job terms and conditions as a result of Amazon’s discriminatory enforcement of Covid protocols, Smalls says.

Their injuries included being deprived of health accommodations, such as personal protective equipment during a novel pandemic, and the “fear, apprehension and stigmatization” that deprivation naturally caused them, he says.

Harm Never Materialized

The alleged link between Smalls and the line workers is further attenuated because his lawsuit didn’t specify which health and safety measures he was personally subjected to, Amazon says.

An increased risk or fear of harm from Covid isn’t enough to show standing for retrospective relief anyway, Amazon says. That wasn’t a concrete injury because the harm never materialized, the company says. The suit only vaguely alleged that Smalls was “alarmed” by the lack of safety enforcement, it says.

In addition, Smalls conceded that there were minorities and nonminorities among both the line workers and management, Amazon says. That’s fatal to his class claim, it says.

Supervisors and line workers are “in no way similarly situated,” the company says. They aren’t comparable for purposes of proving disparate treatment, Amazon says. It can’t be assumed that every worker in a warehouse the size of multiple football fields is similar to each other, as Smalls contends, it says.

And Smalls didn’t sufficiently allege that the implementation of the facility’s Covid policies was intentionally discriminatory, Amazon says. His allegations were also premised on the enforcement of facially neutral safety policies and thus only described potential disparate impact bias, Amazon says.

His class claim, however, was brought under 42 U.S.C. §1981, which requires proof of intentional discrimination, the company says.

Individual Claims

On his individual claims over his termination, the district court held Smalls to an improper standard when it granted Amazon’s motion to dismiss, attorney Michael H. Sussman told Bloomberg Law. He is with Sussman & Associates in Goshen, N.Y., which represents Smalls.

Smalls only needed to plausibly allege that he was fired because he is Black and because he complained about race discrimination against himself and other workers, Sussman said.

The lower court was supposed to read his lawsuit liberally and grant Smalls all reasonable inferences arising from his allegations, Sussman said. Amazon’s arguments go to the merits of Smalls’ allegations, not to their plausibility, he said.

If it comes down to intent, that’s an issue for summary judgment, after the parties have exchanged evidence and the record is fully developed, Sussman said.

According to Amazon, Smalls was fired because he was placed on quarantine at his own request, with pay, after allegedly being in close contact with a co-worker who tested positive.

But he returned to the facility two days later to lead the protest, breaking quarantine and jeopardizing the safety and health of other employees, the company says.

The complaint “fairly construed” makes clear that reason is pretextual, Sussman said. The facility had no quarantine rule, and placing Smalls on quarantine was part of the retaliation, he said.

Neither Amazon nor its attorneys responded to Bloomberg Law’s requests for comment.

Gibson, Dunn & Crutcher LLP represents Amazon.

The case is Smalls v. Amazon.com Servs., LLC, 2d Cir., No. 22-00615, oral argument 11/29/22.