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Ensure there’s no bias in contract hiring, too

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in Discrimination and Harassment,Firing,Hiring

Almost every employer understands that they can’t discriminate against employees on the basis of race. But race discrimination protections also apply even when employers contract out their work.

Contractors who believe they have suffered bias can sue under the Equal Protection Clause of the U.S. Constitution.

Recent case: Two white pathologists, who were under contract to provide autopsy and forensic pathology services to Marion County, sued when their contract was terminated and the county hired a black pathologist for the work.

The white pathologists alleged that the county’s new black coroner was engaged in a plan to get rid of white employees and replace them with black ones. They alleged the plan extended to denying contracts to white service providers.

The county argued that it had terminated the pathologists’ contract under a clause that gave either party the right to terminate the contract for any reason or no reason at all with six months’ notice. But the white pathologists pointed out that the U.S. Constitution protects white citizens from discrimination in contracting, too.

The 7th Circuit Court of Appeals agreed in theory, and then looked to see if race had been a factor. It concluded a jury might see race as a factor, warranting a trial.

As evidence, the court cited a statement by the black coroner. He allegedly said, “I will put my people where they belong.” Shortly after he took office, the racial composition in his division changed dramatically from majority white to majority black. That was another factor a jury will be able to consider when deciding whether the county illegally terminated the white pathologists’ contract. (Radentz, et al., v. Marion County, No. 10-1523, 7th Cir., 2011)

Final note: Have your attorney review all early contract terminations.

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