The Jury Has Spoken: Tesla Liable for $136.9 Million in Individual Race Harassment Case

Owen Diaz was vindicated after fighting back against the appalling racial harassment he endured at the hands of Tesla. He won a resounding victory this month when a jury awarded him $136.9 million, including an enormous $130 million in punitive damages. This verdict is one of the largest of its kind.

Mr. Diaz, who is African-American, worked at Tesla‘s Fremont factory as an elevator operator. Supervisors accosted him using racial epithets frequently, including the N-word, and Mr. Diaz found racist caricatures and swastikas written in the factory and bathrooms. Mr. Diaz complained to management, which did nothing. Dismayed but undeterred, Mr. Diaz courageously stood up to Tesla’s behavior “straight from the Jim Crow era and filed a lawsuit against Tesla.

Tesla fiercely litigated against Mr. Diaz over the four years that followed, but Mr. Diaz prevailed. Tesla argued that even though Mr. Diaz worked at Tesla, followed Tesla workers’ instructions, and earned a rate of pay set by Tesla, that it somehow had no responsibility to prevent the awful treatment he and other African-American workers at the Fremont Tesla factory endured. The jury did not fall for it.

Tesla also argued that Mr. Diaz had not shown any evidence of race discrimination, but the jury saw through that ruse. At one illustrative point in the trial proceedings, Tesla’s attorney asked a witness if the N-word was used in the workplace. After the witness confirmed it was, Tesla’s attorney asked if the epithet was used in a friendly way, completely failing to recognize that such degrading language has no place in any workplace, in any context, for any reason. The evidence of race discrimination at Tesla was so overwhelming that the jury returned an unprecedented verdict with $130 million in punitive damages, finding that Tesla intentionally violated the law.

Tesla forces most employees to sign arbitration agreements, which prevents them from coming together to hold Tesla accountable for its discriminatory treatment and veils in secrecy much of Tesla’s unlawful employment practices. Thanks to Mr. Diaz’s courage, Tesla is at last being held accountable publicly and by the community for its disgraceful and unlawful actions.

Whether Tesla’s expensive loss prompts corporate changes is yet to be determined; as Bryan Schwartz Law previously wrote, Tesla CEO Elon Musk stated that it was “worth it” to intentionally violate securities law and incur a $20 million fine, and he unlawfully threatened employees with a loss of stock options if they chose to unionize. Hopefully, this verdict pushes Tesla to begin to treat its workers with fairness and respect.

Tesla’s disdain for the employees on which it relies – particularly its non-white employees – is familiar to Bryan Schwartz Law. Bryan Schwartz Law has been litigating against Tesla in a race discrimination class action lawsuit, along with co-counsel the California Civil Rights Law Group, which also represents Mr. Diaz. If you have been the subject of race discrimination at Tesla, please contact Bryan Schwartz Law.

Workers Sue Whole Foods After Being Disciplined for Wearing Black Lives Matter Masks

Employees of Whole Foods have filed a class action lawsuit against the supermarket for race discrimination and retaliation after they were allegedly disciplined for wearing masks supporting the Black Lives Matter (BLM) Movement. While Whole Foods—owned by Amazon—has always had a corporate policy forbidding workers from wearing slogans or logos that are not company-related, the workers allege that this policy was not enforced until many employees began wearing BLM slogans at work. The lawsuit seeks reimbursement for lost wages and expungement of any disciplinary action for the disciplined workers. It also seeks permanent injunctive relief for all employees, calling for Whole Foods to end its policy of not allowing BLM masks at work.

 

According to the complaint filed in Massachusetts District Court by fifteen workers across five stores, Whole Foods disciplined about 40 employees and fired one employee—Savannah Kinzer—for wearing BLM masks or slogans at work. Employees were sent home or threatened with termination when they wore their BLM masks. Others were written up or placed on a “corrective action pathway,” which requires employees to re-train. Kinzer, in particular, had also organized workers to wear BLM masks. When workers were disciplined, she filed complaints with the National Labor Relations Board and the Equal Employment Opportunity Commission but was fired within an hour of informing her manager of the complaints. Whole Food maintains that Kinzer’s termination has no relation to her wearing BLM masks and was due to her repeated violations of Whole Food’s Time & Attendance policy. 

 

The suit alleges that no employees have previously been disciplined for wearing non-work-related slogans, including employees who have worn pins supporting the LGBTQ movement and one employee who wore a pin that said, “Lock him up.” The workers and their lawyers argue that disciplining employees who wear BLM slogans constitutes discrimination against Black employees and other employees who support their Black coworkers. 

 

This lawsuit comes at a time when many companies have broadened their dress code policy to allow workers to wear BLM apparel at work, including Starbucks, McDonald’s, and Taco Bell. Meanwhile, an independent federal agency called the Office of Special Counsel found that federal employees may express support for the BLM Movement in the workplace without violating the Hatch Act, which restricts political activity by government employees, because the term BLM does not amount to “inherently political activity.”

 

Bryan Schwartz Law has written about the Black Lives Matter Movement, race discrimination, and retaliation many times before. If you believe you were discriminated against or retaliated against at work, please contact Bryan Schwartz Law today.

White Silence is Violence

Ahmaud Arbery. Breonna Taylor. Christian Cooper. George Floyd. David McAtee.

The lasting power of white supremacy is once again on full display. All of us – especially those benefiting from a legacy of white privilege – have an obligation to end this reign of terror. As civil rights lawyers, we at Bryan Schwartz Law feel a special duty to respond.

Our work as lawyers hinges on a core belief in the rule of law and the power of the law to organize society in a way that protects and provides for its people. The events of the past weeks are a painful reminder that the rule of law is not evenly applied. Yesterday, the president ordered police to tear gas protestors at the White House so that he could get a photo holding a bible in front of a church (whose bishop, by the way, was not warned of nor condoned his visit). When police and other government actors contribute to the abrogation of vital protections (like our First Amendment freedoms of speech, association, and assembly, and anti-discrimination laws) or selectively enforce laws as a way to subjugate people, we as lawyers have an obligation to step in and push our legal system to correct course.

That includes intervening in every sphere of life where white supremacy is present, including employment. While California is home to some of the most progressive employment laws in the nation, there is also a seemingly endless stream of cases of Black employees being denigrated and abused in the workplace, one of which is our class-action race discrimination and harassment case against Tesla.

When clients first come to us, their faith in the law has generally been shaken. They have been wronged; their rights have been violated. It is a special duty and honor to be able to say, we hear you, we are with you, we will stand beside you, and we will fight for you.

And so today we say: Black Lives Matter and fight white supremacy. The struggle for racial justice is real and it is long. We will continue to lend our talents and treasures to the struggle to defeat racism in all its forms.

A Single Racial Slur Can Support a Hostile Work Environment Claim

For a harassment claim to be actionable under Title VII of the Civil Rights Act, the workplace conduct “must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Employers frequently seek to escape liability for harassment by arguing that the discriminatory conduct alleged by the employee was too minor to create liability.

Now the Second Circuit Court of Appeal, in New York, has ruled that the single use of a racial slur can form the basis for a hostile work environment claim under Title VII, when viewed together with other seemingly “neutral,” i.e. non-racial, harassing behavior. Daniel v. T&M Protection Resources LLC, __ Fed.Appx. ___, 2017 WL 1476598 (2d Cir. Apr. 25, 2017).

In Daniel, an unrepresented employee, Otis Daniel, appealed a district court order dismissing his hostile work environment case against his former employer on summary judgment. Mr. Daniel had alleged numerous incidents of harassment during his 15-month period of employment. The vast majority of incidents alleged were not specifically racist, on their face. But, he also alleged that his supervisor once addressed him as “you fucking nigger.”

The Court held that the district court erred when it determined, as a matter of law, that Mr. Daniel failed to alleged facts sufficient to support a hostile work environment claim based on race. The Court explained, that “[b]ecause ‘some evidentiary basis’ existed for inferring that [a] ‘neutral’ incident was animated by hostility because of Daniel’s race, [the district court should have considered that evidence] as part of Daniel’s racial harassment claim.” Slip Op. at *2. That is, where a supervisor makes a racially-charged statement to his or her subordinate employee, on summary judgment a court should consider that fact together with other incidents the employee alleges were harassing, but not overtly racial in nature.

The Court did not need to rule on the question of whether the “one-time use of the slur ‘nigger’ from a supervisor to a subordinate can, by itself, support a hostile work environment claim.” Daniel, Slip Op. at *1 (emphasis added). However, the Court of Appeals did conclude that the lower court “improperly relied on our precedents when it rejected this possibility as a matter of law.” Id. at *1. The appellate court explained that Second Circuit case law does “not foreclose the possibility that the one-time use of a severe racial slur could, by itself, support a hostile work environment claim when evaluated in the cumulative reality of the work environment.” Id. at *1. The Court highlighted  dicta in Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014) that “‘perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as nigger by a supervisor in the presence of his subordinates.’” Slip Op. at *1 (emph. added by Daniel court).

If you have been the victim of a racial slur, that illuminates the true motivation behind other unfair treatment by an employer, and you want to discuss this with an attorney, contact Bryan Schwartz Law today.

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Eleventh Circuit Rules that Dreadlocks Not Protected Under Discrimination Law

In EEOC vs. Catastrophe Management Systems, the Eleventh Circuit held that an employer with a policy that prohibits "excessive" hairstyles is permitted to reject an applicant with dreadlocks, even though the policy would tend to target African American employees.

 

The EEOC sued Catastrophe Management Systems on behalf of Chastity Jones, a black job applicant whose job offer was rescinded after she refused to cut off her dreadlocks. Jones applied to CMS through an online application and was selected for an in-person interview. Jones attended the interview dressed in a business suit, wearing her hair in short dreadlocks. After the interview, Jones joined several other applicants in a room where they were all told they were hired.

  

Unfortunately, the good news for Jones was short-lived. When she later met with CMS' human resources to complete hiring paperwork, the Human Resource Manager told Jones she could not be hired if she kept her dreadlocks. Jones asked why and the manager responded with "they tend to get messy, although I'm not saying yours are, but you know what I am talking about." Jones refused to cut her dreads, and CMS rescinded the offer.

 

At the time of the conversation, CMS had a grooming policy that said “All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines…No excessive hairstyles or unusual colors are acceptable.

  

The federal district court and the Eleventh Circuit rejected the EEOC's argument of discrimination, concluding the complaint rested on an improper argument that Title VII protected against discrimination based upon mutable characteristics. "Title VII prohibits discrimination on the basis of immutable characteristics, such as race, color, or natural origin," and a "hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic" the court concluded.

 

It is worth underscoring that the EEOC did not argue that CMS' grooming rules had a disparate impact on African American employees. It is not clear whether or not the case's outcome would have been different if the employer had faced a disparate impact, as opposed to a disparate treatment, claim.

 

“This litigation is not about policies that require employees to maintain their hair in a professional, neat, clean or conservative manner,” said C. Emanuel Smith, regional attorney for the EEOC's Birmingham District Office. “It focuses on the racial bias that may occur when specific hair constructs and styles are singled out for different treatment because they do not conform to normative standards for other races.” Bryan Schwartz Law agrees.