Title VII of the Civil Rights Act prohibits employment discrimination against an individual because of that person’s “race, color, religion, sex, or national origin.” While courts routinely address claims of race discrimination, claims of discrimination on the basis of color alone are far less frequently reviewed.
Recently, in a case of first impression, the 5th U.S. Circuit Court of Appeals reversed a lower court’s dismissal of a case in which a plaintiff claimed that she was passed over for a managerial position because she was a “dark skinned black person.” The Fifth Circuit based that reversal on statements that it deemed to be “direct evidence” of color discrimination. Etienne v. Spanish Lake Truck & Casino Plaza, LLC, 5th Cir., No. 14-30026, February 2, 2015.
Esma Etienne was a waitress and bartender at Spanish Lake Truck & Casino Plaza (“Spanish Lake”) in New Iberia, Louisiana, and routinely was rated as an excellent performer who exceeded the requirements for her position. After working at Spanish Lake for three years, Etienne was passed over for a promotion to a managerial position. The position ultimately was filled by a white female waitress trained by Etienne.
Etienne filed a lawsuit, alleging failure to promote based on race and color. To support those allegations, Etienne submitted an affidavit from a former manager, who testified that Bernard Terradot, Spanish Lake’s general manager, allocated responsibilities to employees based upon skin color. According to the affidavit, Terradot and his wife had stated on multiple occasions that he would not let a “dark skinned black person handle any money” and that he believe that Etienne was “too black” to do various tasks.
The lower court granted summary judgment in favor of Spanish Lake, relying heavily on the fact that most of the managers at Spanish Lake were of the black race. On appeal, however, the Fifth Circuit stated that although it “never recognized ‘color’ as a separate unlawful basis for discrimination by employers,” the text of Title VII was “unequivocal” on the issue, and precluded color discrimination.
To prevail at the summary judgment stage of litigation – which allows a judge to dismiss a matter prior to the jury’s review – Spanish Lake had to show that a reasonable jury would have concluded that the same promotional decision would have been made absent the alleged discrimination. The Fifth Circuit held that evidence of Etienne’s qualifications, coupled with the direct evidence regarding Tarradot’s statements, were sufficient to allow the case to go to a jury. The dismissal was vacated, and the case was remanded for trial.
In this case, “color” discrimination was reviewed by the appellate court as a stand-alone discrimination claim – something not frequently seen to this point. Employers should recognize the two issues touched upon in the Fifth Circuit’s decision: (1) that “color” is referenced under Title VII as a separate basis for discrimination and, therefore, should not be discounted when complained of by an employee; and (2) that evidence of statements related to skin color as a basis of job assignment is likely to be viewed by the courts as direct evidence of discrimination, and not simply as “stray remarks.”