“Although slavery may have been abolished, the crippling poison of racism still persists, and the struggle still continues.” — Harry Belafonte
For more than 60 years, the Ohio Civil Rights Act has sought to “prevent and eliminate the practice of discrimination in employment against persons because of their race, color, religion, national origin, or ancestry.” Likewise, Title VII of the Civil Rights Act of 1964 made it unlawful for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.” Yet despite more than six decades of state and federal laws prohibiting race discrimination in the workplace, employers still make employment decisions based on skin color, and courts are still clarifying what “terms, conditions, or privileges of employment” really mean.
One of these employers is none other than the City of Cleveland. As our loyal readers and clients know, Spitz, The Employee’s Law Firm is based in Cleveland, Ohio, so it hurts that much more that our beloved city is in the spotlight here for making employment choices based on the color of their employees’ skin. But that’s exactly what happened to Reginald Anderson, Pamela Beavers, Margarita Noland-Moore, Michael Threat, and Lawrence Walker, all Black captains in the city’s Emergency Medical Service (“EMS”) division.
Each fall, EMS captains would bid on their schedules for the upcoming year, choosing different days to work and opting for day or night shifts. The city used a seniority-based bidding system to assign shifts, giving longer-tenured captains shift preference. The EMS captains were members of a Union, and their collective bargaining agreement (“CBA”) would allow Nicole Carlton, the city’s EMS Commissioner, to transfer up to four captains to a different shift, even if it conflicted with a captain’s first choice.
In 2017, the captains bid on shift assignments for 2018. The bidding process generated a schedule in which Anderson, Noland-Moore, and Walker were slated to work a day shift together. That meant only Black captains would staff the shift. Exercising her power under the CBA, Carlton removed Anderson from that day shift and replaced him with a White captain to “diversify the shift.” As you might imagine, this caused quite a stir for Anderson and the other Black captains. In response, Carlton asked the captains to rebid their preferences. But the rebidding generated a schedule in which Anderson was slated for a day shift staffed only by Black captains. Carlton again reassigned Anderson to a night shift. She did so to “create diversity” among what otherwise would have been a day shift staffed entirely by Black captains.
In 2019, the captains sued the city and Carlton in federal court. They brought discrimination and retaliation claims under Title VII and Ohio law. After initially losing the case in the Northern District of Ohio, the captains appealed to the Sixth Circuit Court of Appeals. The Sixth Circuit reversed the trial court’s decision. Specifically, the Sixth Circuit wrote, “Do discriminatory shift changes based on race violate Title VII of the Civil Rights Act of 1964? We think so.” Threat v. City of Cleveland, Ohio, 6 F.4th 672, 677 (6th Cir. 2021).
Why is this case so important in the fight against race discrimination? Simply put, it challenges the need to show “objectively tangible harm” in Title VII cases. For years, employers have argued that blatant discrimination like that against the EMS captains was not illegal because it did not cause “objectively tangible harm” to the employees. It did not cost them money, or seniority, or promotions. They were not demoted or fired. Even when there was no dispute that race or national origin or gender played a role in an employment decision, employers still prevailed because “dissatisfaction with a reassignment, public humiliation, or loss of reputation are not adverse actions.” The employee must experience “materially adverse consequences affecting the terms, conditions, or privileges of employment,” which has historically meant they needed to feel it in their pocketbook.
There was no room for debate that the city treated the Black captains differently “because of” their “race.” Carlton admitted she switched out a Black captain for a White one to adjust the shift’s racial makeup. That counts as direct evidence of discrimination based on race. The city argued, as many employers have done in the past, that the Black captains experienced no “objectively tangible harm” because the terms of their employment (i.e., rank, pay, seniority, etc.) was not affected. The Sixth Circuit Court of Appeals disagreed. The Court held, “When an employee’s race is a basis for a shift change that denies the privileges of that employee’s seniority, the employer has discriminated on the basis of race in the terms and privileges of employment.”
In defending its racist workplace behaviors, the city argued the Court’s ruling would turn the anti-discrimination laws into a “general civility code” that federal courts would use to police the pettiest forms of workplace misconduct. But prohibiting a Black employee from exercising his seniority rights is not petty. Prohibiting a Black employee from working a preferred shift that results in diminished benefits he has earned is not petty. Diminishing his supervisory responsibilities and controlling when and with whom a Black employee is allowed to work is not petty. It is discrimination.
It took five Black captains several years to make the courts realize “the crippling poison of racism still persists, and the struggle still continues.” Count this as a win for the good guys. One more victory in the war against racism, discrimination, harassment, and retaliation in the workplace.
If you feel that you are being discriminated or harassed based on your race or that you were wrongfully terminated because of you are Black, Hispanic, Asian or any other racial minority, the best course of action you can take is to call the right attorney to schedule a free and confidential consultation. At Spitz, The Employee’s Law Firm, you will meet with a race discrimination attorney, who will be able to tell you what your legal rights are and the best way to protect them. Call our top attorneys in Cleveland, Columbus, Cincinnati, Toledo, Ohio, Detroit, MI, and Raleigh, NC for help and we will be there for you.
The workplace discrimination materials available at the top of this race discrimination page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney Brian Spitz, or any individual attorney.