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Amazon Seeks Exit From Worker Race Bias Suit Over Covid Measures

March 8, 2021, 10:07 PM

Amazon.com Inc. asked a federal judge to dismiss a proposed class action alleging Black and Hispanic line workers at a Staten Island fulfillment center are denied equal protections from Covid-19, saying the suit implicates workplace safety, not job bias laws.

Management associate Christian Smalls, who is Black, sued Aug. 12. The company failed to act on complaints lodged by him and others that the center’s mostly White managers benefited from greater efforts to shield them from the novel coronavirus than the facility’s mostly minority line staff received, he said.

The bias extended to Amazon’s highest ranks and included not taking employees’ temperatures, providing them with personal protective equipment, or enforcing social-distancing rules and other state or CDC guidance, the suit alleged.

Smalls sued under 42 U.S.C. §1981, which prohibits race bias in the making or enforcement of a contract, and New York state and city employment discrimination laws. But primary jurisdiction over workplace health and safety claims resides with the Occupational Safety and Health Administration, Amazon said March 5 in a motion to dismiss filed with the U.S. District Court for the Eastern District of New York.

Dismissal is proper under the primary jurisdiction doctrine, which permits courts to stay or dismiss cases for an administrative agency to resolve in the first instance when they involve issues that have been placed within their specialized knowledge, the company said.

Smalls is also no longer an Amazon employee, so he lacks standing to challenge policies that no longer apply to him on behalf of the proposed class, the company said.

The suit additionally doesn’t plausibly allege that race was the but-for cause of the challenged policies, Amazon said. Section 1981 only prohibits intentional discrimination, not the sort of inadvertent, policy-based bias that Smalls alleges, the company said.

The allegations specific to Smalls also don’t make the grade, the company said.

His race bias claim is undercut by his allegations that he was fired for returning to the job site while under quarantine to lead a worker protest over Covid measures at the facility, Amazon said.

And complaining about workplace safety isn’t the sort of activity shielded from retaliation under Section 1981, the company said.

Smalls’ claims under state and local anti-bias laws are preempted by the National Labor Relations Act, it said.

Sussman & Associates represent Smalls and the proposed class. Gibson, Dunn & Crutcher LLP represents Amazon.

The case is Smalls v. Amazon, Inc., E.D.N.Y., No. 1:20-cv-05492, motion to dismiss 3/5/21.

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

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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