The Seventh Circuit Court of Appeals recently issued a decision in Alexander v. Casino Queen Inc. that reversed a trial court summary judgment halting a race discrimination claim from moving forward.
Now, two black casino cocktail waitresses who claim they were treated poorly in comparison to their white counterparts will be allowed to have their case heard at trial. The appellate court struck down the trial court’s earlier finding that the women had not established they had suffered adverse employment action.
This case involved the very same Illinois casino that just a few years ago settled a large racial discrimination claim brought by more than 70 current and former black employees.
Those considering filing a racial discrimination lawsuit in Boston should recognize that they have one of two ways of proving their claim. The first is a direct method of proof, while the other is indirect.
An example of direct evidence would be admission of discriminatory intent or some other type of “smoking gun” evidence. It could also be a collection of circumstantial evidence, which would include include:
Suspicious timing, ambiguous oral or written statements or behavior toward a protected group of individuals;
- Evidence that similarly-situated workers outside that protected class usually received better treatment than those in it;
- Evidence that the worker was qualified for the job in question but was passed over in favor of a person outside the protected class and that the reason was discrimination.
Plaintiffs have to show sufficient evidence that a rational jury could conclude the employer was taken negative action against the worker because of his or her belonging to a protected class.
With indirect evidence, plaintiffs would have to outline a prima facie (“at first look”) case of discrimination. That is, they have to show they are a member of the protected class, that they were meeting the legitimate expectations of their employers, that they suffered an adverse employment action and that at least one similarly-situated worker not in the protected class was treated more favorably. If the worker does this, the burden of proof then shifts to the employer to provide some nondiscriminatory reason for the adverse employment action.
In the Alexander case, the appellate court found that the cocktail waitresses met the burden of proof for both direct and indirect evidence. According to court records, the two plaintiffs both worked for the company for several years, during that time suffering a number of adverse employment actions they attribute to their race.
The three biggest complaints concern floor reassignments, discipline and privileges.
With regard to floor reassignments, the women say it was well-known that certain areas of the casino were more profitable tip-wise than others. Generally, the more preferable areas were assigned to workers based on seniority. As two of the most senior workers, they should have been regularly assigned to these more profitable areas. However, they contend they were routinely denied these assignments, which were instead turned over to less-experienced white cocktail waitresses. Although their base pay would be the same, their tips – which comprised about 40 to 75 percent of their take-home pay – were significantly impacted.
Then there were issues with discipline. The black cocktail waitresses said they were harshly and unfairly disciplined as compared to their white counterparts. While one was suspended for being one-minute tardy, white cocktail waitresses were sometimes an hour or more late without being docked. In some cases, they were docked for tardiness even when time sheets showed they were in fact on time. White waitresses were also allegedly caught doing things like eating on the floor or talking to their friends, for which they would not receive discipline. The black waitresses, however, would be disciplined.
Then with regard to to privileges, the black waitresses say they were denied things like time off for family emergencies. One said that she was denied a day off to attend the funeral of her aunt. However, several months later, a white waitress was given the day off to tend to a suicidal family member.
When the trial court reviewed this evidence, it was initially decided the women didn’t have a case because they hadn’t proven adverse employment action. Adverse employment action is described as being one of the following:
- Termination or reduction in compensation, fringe benefits or other financial terms of employment;
- Transfers or changes in job duties that cause an employee’s skills to atrophy or reduce future prospects;
- Unbearable changes in work conditions.
The floor reassignments in particular, the appellate court concluded, pointed to an adverse impact on compensation. The district court had said that such a matter was speculative because the women couldn’t say how much they actually lost in tips. But given that these women had worked there for 15- and 18-years respectively, they knew which areas were more lucrative and which weren’t, and they knew that being reassigned to less profitable sections with a twice-weekly frequency was having a financial impact. Each estimated that the reassignments cost them about $50 daily – enough to warrant this action.
The Brown Law Firm, LLC, has offices in Belmont and Boston. For a free and confidential consultation, call 617-489-0817 or contact us online.
Alexander v. Casino Queen Inc., Jan. 8, 2014, U.S. Court of Appeals for the Seventh Circuit
More Blog Entries:
Sex Discrimination Claims Span Both Blue and White Collar Industries, Dec. 4, 2014, Boston Employment Lawyer Blog