Wal-Mart, the nation’s largest retail employer, has been teaching us over the last few weeks about employer pitfalls to avoid. (Once again, let’s show Wal-Mart some gratitude for committing its time, money and other resources to teach valuable lessons to the rest of America’s employers.) This week, we will let Wal-Mart teach us some lessons in the area of race and national origin discrimination. Wal-Mart has faced dozens of these types of lawsuits since the 1990’s. We are going to focus on four of the more recent ones and see what pearls of wisdom we can glean from them after the jump…
Just last year, the EEOC sued Wal-Mart for harassment based on national origin and religion, as well as retaliation in EEOC v. Wal-Mart Stores East LP Civil Action No. 8:13-cv-02655 (Dist. MD). Ebrima Jallow, a Gambrian and Muslim worked as an asset protection specialist, and an asset protection coordinator at Wal-Mart’s Landover Hills, MD store. Mr. Jallow’s supervisor allegedly suggested that he “go back to Africa”, mocked his accent, told him that “all Muslims do is blow up buildings and people”, and objected to his hiring. The harassment, according to the EEOC occurred during staff and private meetings and during discussions about Mr. Jarrow’s work responsibilities. Jarrow complained about the harassment both of himself and other employees, after which the store manager retaliated against him by threatening to terminate him, placing him on a one-year “coaching period” and telling the other employees not to cooperate with him in connection with performing his job functions. Wal-Mart may have to pay both compensatory and punitive damages if this case goes to trial. The lessons here: Train your managers on the subject of harassment and retaliation –and enforce and monitor compliance with your anti-harassment policies.
You may be aware that Wal-Mart includes both Wal-Mart and Sam’s Club stores. In EEOC v. Wal-Mart Stores, Inc. dba Sam’s Club, et al., Case No. 09-CV-00804 at least 9 female employees of Mexican descent at the Sam’s Club in Fresno, and Bakersfield California and one more female employee married to a Mexican were, since late 2005, were subjected to ethnic slurs and derogatory remarks by a fellow, female Mexican-American co-worker. The victims complained in vain to management in April 2006, and filed a charge with the EEOC in October 2006. Two months later, Sam’s Club finally discharged the harasser. The EEOC nonetheless felt that Wal-Mart’s failed to appropriately address the issue, and filed suit in federal court in the Eastern District of California. Wal-Mart paid $440,000 to the 10 victims and entered into a three-year consent decree to closely monitor those issues at its Fresno and Bakersfield stores in April 2011. The lessons: a) Racial, ethnic or similar harassment is still harassment even if the harasser is belongs to the same or similar group; b) Take all harassment allegations seriously and make good faith efforts to respond promptly and appropriately.
In February 2009 Wal-Mart agreed to a $17.5 million settlement of a class action lawsuit , claiming that Wal-Mart had discriminated “on the basis of race in recruitment and hiring of over-the-road truck drivers in Wal-Mart’s private fleet”. The settlement ended what had been a 5-year court battle. Nelson v. Wal-Mart Stores Inc. et al., case number 04-cv-00171 (E.D. Arkansas,) took aim at Wal-Mart distribution centers in Mississippi, Tennessee, Arkansas, Louisiana, Texas, Alabama, Georgia, Florida, North Carolina, South Carolina, Kentucky and Virginia. Wal-Mart allegedly required that African-Americans have not only a commercial driver’s license but a good credit rating to qualify (because we all know that credit ratings of African-Americans are directly related to driver safety, right?). Mr. Nelson also alleged that a human resources director told him he would be hired as a laborer and not a truck driver, because of his “gut feeling” that he had falsified his credit and driving records. The settlement requires Wal-Mart to a) establish benchmark hiring goals so that future hires of qualified African-American candidates would be proportionate to the racial composition of the applicant pool; b) select a diversity recruiter; and c) enhance its recruitment efforts and advertising to African-Americans. In other words, Wal-Mart was, as of February 2009, subjected to affirmative action requirements. (Generally, only federal government contractors are subject to affirmative action requirements, but that is a subject for another post.) The lesson here: Make sure that your hiring criteria are actually job-related and that you apply them equally to all candidates.
Last month, in Abdulahi v. Wal-MartAssociates, Inc. et al, case number 1:12-cv-04330 (N.D. GA) Ibrahim Abdulahi, a former assistant store manager in Wal-Mart’s Marietta, Georgia store, asked the court to sanction Wal-Mart for allegedly destroying a surveillance video relevant to the case. Mr. Abdulahi, was of Ethiopian descent, and had filed a racial discrimination suit against Wal-Mart in 2012. Mr. Abdulahi alleged that Wal-Mart retaliated against him by issuing poor performance reviews and ultimately firing him. The video, according to Mr. Abdulahi, was “the best evidence that could be used to resolve the central dispute of the case”. While the court dismissed most of his claims, it left the retaliation claim intact. The lessons here: Be careful how you react to discrimination allegations. Even if those allegations are bogus, you could still be found liable for retaliation(Click here, here and here, here and here for review.)–and, if you’ve been sued, don’t destroy evidence.
These are just four racial/national origin discrimination cases involving Wal-Mart. To be fair, Wal-Mart has gotten a number of those other cases dismissed–after spending significant time and money.
While Wal-Mart has been accused of other types of discrimination we are going move out of that arena. Next week we will look at how Wal-Mart has fared with FMLA adherence. Meanwhile, Happy Trails to you until we meet again!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.
“Like” The Emplawyerologist on Facebook, by clicking here.
Want to really be up to date on hot button topics impacting employers? E-mail email@example.com for a monthly subscription to Emplawyerology Alerts!