These days, it seems like just about everyone belongs to a protected class. The fact is, lots of employees try to blame lost jobs or promotions on discrimination. To do so, they assign themselves into protected classes that may not seem at all obvious.
Take, for example, race and national origin discrimination. As the following case shows, a black employee who obviously hasn’t been discriminated against because he is black may add national origin to the mix. The argument: That general discrimination against blacks didn’t cost a promotion, but discrimination against blacks born in Africa did.
Recent case: Raphael Chieke, who is black and of Nigerian origin, applied for—but didn’t get—a transfer and promotion. Ironically, he was the director of equal employment opportunity at the Pennsylvania Department of Corrections and was seeking a promotion to an EEO position at the Pennsylvania Department of Welfare.
He did well on the written civil service examination, but that wasn’t the sole selection criterion. Employees in the next lower classification and those who were already performing the job on a temporary basis also were eligible. When the agency passed over Chieke and picked two other candidates to interview, he sued for discrimination.
The fact that one of the candidates was a male and the other was a black female sunk any possible claim of sex and race discrimination. But Chieke argued national origin discrimination, claiming the employer had previously passed over two African-born males in favor of less qualified applicants.
But Chieke still couldn’t prove he was as well-qualified as the other two applicants, and the court ruled against him. However, the court said he could have used alleged bias against African-born males to bolster his claim if he had been equally or better qualified. (Chieke v. Pennsylvania Department of Welfare, et al., No. 1:CV-06-1294, MD PA, 2008)
Final note: It pays to know the race and national origin of your employees so you can look for less than obvious patterns that could trigger a discrimination lawsuit. For example, are Haitian-born blacks promoted more frequently than their U.S. born co-workers? That could lead to a lawsuit. Even the EEOC is getting in on the act, looking at mixed forms of discrimination, such as against blacks with darker skin.
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