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Why civil rights laws tolerate racial discrimination in the workplace

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The murder by Minneapolis Police of George Floyd sparked clashes between protesters and police this weekend in Nebraska and nationally. Elected officials in Lincoln and Omaha imposed almost unprecedented curfews attempting to quell violence.

The protests focused some attention on the problems with civil rights laws in remedying police violence against people of color. But, civil rights laws are also flawed when it comes to discouraging discrimination on the job.

“But for” and “motivating factor”

An employee must show their employer used race as motivating factor to win a racial discrimination case under state or federal law. The law distinguishes “motivating factor” from the more permissive “contributing factor” standard. Legally an employer could get away with being sort of racist in making an employment decision, so long as they weren’t too racist.

The United States Supreme Court recently increased the quantum of legally tolerated racism towards African-Americans. In the Comcast decision, the Supreme Court held African-Americans must prove race was a “but for” factor to win under 42 USC 1981. Plaintiff’s face an even steeper burden of proof in proving a “but for” factor rather than a motivating factor.

42 USC 1981 outlaws racial discrimination in contracting – including employment. But Section 1981 does not require claimants to file an administrative charge and has a four year statute of limitations. Title VII has a 300 day statute of limitations and requires claimants to file a charge of discrimination with a civil rights agency. Weakening the substantive protections of 1981 undercuts the procedural advantages of bringing a 1981 claim.

Reasonable inference or speculation?

Civil rights laws still pack some punch in stopping racial discrimination at work. The law tolerates some level of racial discrimination in employment. But it is up to a jury to weigh how important racial discrimination was in an employment decision. That is an expensive and risky proposition for an employer. A judge shouldn’t dismiss a case on summary judgment, if an employee shows race was a contributing factor in their termination.

On summary judgment, judges are supposed to give employees the benefit of reasonable inferences. But what one person views as reasonable inference another might view as speculation. Speculation won’t beat a summary judgment motion.

Contributing factor causation would take the guesswork out of summary judgment motions in employment discrimination cases.  The increased likelihood of a jury verdict in a racial discrimination claim would force employers to increase vigilance in preventing racial discrimination in the workplace.

Implementing contributing factor causation in employment discrimination cases and abolishing qualified immunity in police brutality cases won’t make racism disappear. But those proposals are at least concrete measures that would lessen the effects of racism in this country.

I believe it’s important to state that appellate court judges have written these causation standards into civil rights laws. But what judges do, legislators can undo. I hope the undoing starts in Lincoln and Washington DC soon.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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