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A federal appeals court in Virginia recently affirmed a trial court's dismissal of a complaint by an African American security guard against a private high school in Alexandria, Virginia. The employee alleged that she was discriminated against based on her race and disability, but the courts determined that she had no case.
Picture this: A Black female security guard with diabetes is prohibited from popping out to a gas station to get a snack needed for her diabetes, is treated less favorably than non-Black security guards when it came to scheduling, overtime, and uniform purchases, and is told to smile more because "people who are happy but do not smile have mental problems."
Sounds like a good case, but as so often happens with discrimination lawsuits, the details matter. Courts will parse out exactly what happened, what was said, and when. If the alleged bad behavior doesn't fit with the requirements of a discrimination claim, the plaintiff will be out of luck.
Fiji Zaire, who worked at Episcopal High School, alleged that she was treated differently than non-Black security guards. For example:
Hispanic guards were given first choice regarding schedules and overtime
Hispanic guards were consulted about uniform purchases, but her opinion was not solicited and she had to wait longer to get a new uniform
Hispanic guards were allowed to submit leave requests in different formats
Hispanic guards were allowed to skip security checks in bad whether, and she was not.
In addition, Ms. Zaire alleged that she was not allowed to take a snack break and that her supervisor, the Director of Security, discussed her demeanor with her, stating that Ms. Zaire did not smile often, suggesting that she had mental problems.
The court found that Ms. Zaire's claims did not rise to the level of discrimination. With respect to the allegation of race discrimination, the court noted that a requirement to be successful in a race discrimination claim is an "adverse employment action," meaning an action that adversely affected the terms, conditions, or benefits of employment.
Examples of an adverse employment action are a discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, reduced opportunities for promotion, or reassignment to the determent of the employee.
The court noted that "oral or written reprimands do not constitute adverse employment action, unless the plaintiff can prove the action had collateral consequences that rise to the level of an adverse action"
In dismissing the lawsuit, the court found that the plaintiff was still employed and had received annual pay increases and that she had not been demoted or lost her job title or responsibilities. It characterized the issues raised by the plaintiff as "minor incidents" that were "mere inconveniences" and not actionable under Title VII.
With respect to the discrimination claim relating to the plaintiff's diabetes, the court found that she was in fact allowed a snack - just that she was not allowed to leave the school without clocking out, a policy designed to ensure security coverage.
The court similarly dismissed all of plaintiff's other claims.
The takeaway: The court noted that there were insensitive comments made and that there may have been rude treatment or personality conflicts, but that such issues don't rise to the level of actionable discrimination.
In the end, the employer was able to avoid liability. But not before spending a lot of time and money to defend itself. I wonder whether more equitable treatment would have prevented a lawsuit from being filed in the first place. Also - don't tell an employee that people who are happy but do not smile have mental problems!
