Sunday, July 11, 1999

BENCHMARKS


Courts collide on discrimination

BY BEN KAUFMAN
The Cincinnati Enquirer

        A landmark 2-1 decision opens the back door to suing employers over discrimination but puts the court at odds with the only other circuit to address similar questions.

        The issue is the breadth of the authority of the federal Equal Employment Opportunity Commission (EEOC) when it pursues an individual's discrimination complaint.

        The case arises from Carol Adams' suspicion that a white boss at Frank's Nursery & Crafts in Detroit bypassed her for promotion because she is black.

        Frank's said the white candidate was better qualified.

        Ms. Adams didn't sue Frank's because she had signed a pre-employment agreement to compulsory arbitration for job-related complaints.

        Instead, she went to EEOC in 1995. It investigated and took up her cause. When conciliation efforts failed, EEOC sued Frank's.

        EEOC asked the court to end what it said was discrimination and to award back pay and damages to Ms. Adams. That was what Ms. Adams would have demanded had she been free to sue.

        EEOC lost.

        U.S. District Judge Lawrence P. Zatkoff granted pretrial summary judgment to Frank's, saying the law was against the agency; EEOC could not sue on behalf of Ms. Adams because it was bound by her agreement to arbitrate any grievances.

        However, Judge Zatkoff said EEOC could sue on behalf of a class of discrimination victims, but there was none in the Adams case.

        EEOC appealed, arguing:

        • It was not bound by Ms. Adams' contractual agreement to arbitrate.

        • Failure to sue on behalf of a class did not prevent it from suing for monetary damages on behalf of an individual — Ms. Adams.

        Appellate Judges Eric L. Clay, John R. Gibson and David A. Nelson agreed on the first point. They said an employee's promise to arbitrate differences did not bind EEOC:

        • Congress' “plain language” gave EEOC an independent right to “eradicate employment discrimination on behalf of the public interest.”

        • Ms. Adams' contract could not waive EEOC's statutory rights because general principles of contract law forbid courts from holding a non-party to a contract when that party never agreed to the terms.

        • Ms. Adams' decision to waive her right to vindicate her personal interests could not waive the federal government's right to “vindicate the public interest ... ”

        All three judges gave EEOC another chance to pursue its anti-discrimination suit but Judge Nelson said EEOC could not sue for money for Ms. Adams.

        Citing a decision by the 2nd Circuit in New York, Judge Nelson said Ms. Adams' contract requires her to arbitrate such money claims.

        When the case was returned to Judge Zatkoff, Ms. Adams and Frank's settled rather than go to trial. Coincidentally, Ms. Adams and her supervisor have left the company and the country is left with a conundrum.

        The settlement bars Frank's from challenging the 2-1 affirmation of EEOC's power to sue for damages for individuals who cannot sue their employers.

        That means Frank's won't ask the U.S. Supreme Court to resolve the conflict between the 2nd and 6th Circuits on that money question.

        Some other case will have to work its way through the system before that contradiction is resolved.

        Meanwhile, judges in the 6th Circuit will allow EEOC to sue for individual damages in similar cases, judges in the 2nd Circuit won't, and other judges face conflicting — if nonbinding — decisions on whether EEOC can sue for damages for individuals who have signed contracts to arbitrate employment quarrels.

A verdict on jury selection
        A lawyer who suspects potential jurors are being rejected because of color can challenge those dismissals.

        However, a Memphis, Tenn., judge mishandled subsequent steps and Angela Breasher McFerron is entitled to a new trial on her perjury conviction.

        Mrs. McFerron is black. Her lawyer used seven of her 10 peremptory challenges — which require no explanation — to reject white prospective jurors.

        Prosecution objections to five peremptory challenges triggered a hearing where Mrs. McFerron's lawyer said of the rejected white men:

        • The physician would be “ultraconservative,” favor prosecutors and influence other jurors.

        • Another man — an alternate juror in an earlier murder trial — suggested by his tone that he would be “extremely conservative.”

        • The next prospect's military background “makes people see kind of black and white” and resembles police work.

        • A rural Tennessean would “see things more simplistically and be less willing to be open-minded” than an urban juror.

        • Finally, the fifth prospect's apparent hurry could be a “detriment” during deliberations.

        U.S. District Judge Jon Phipps McCalla seated all five as jurors, saying Mrs. McFerron's lawyer failed to prove his peremptory challenges were not racially motivated.

        On appeal, Judges Damon Keith, Alice Batchelder and R. Guy Cole Jr. said Ms. McFerron was entitled to a new trial.

        They said the judge mistakenly required Mrs. McFerron and her attorney to prove their challenges were not racially motivated.

        That's not how it works.

        Once prosecutors raised the racial issue, Mrs. McFerron was required only to provide a racially neutral reason for peremptory challenges.

        Regardless of whether such reasons or stereotypes were valid or persuasive, Mrs. McFerron met her obligation under Supreme Court rules. After that, it was up to prosecutors to prove those explanations were a cover for racism.

        Judge Phipps erred when he skipped that third step and decided the question based on Mrs. McFerron's explanations. That denied her a fair trial and the government must retry Mrs. McFerron or let her go.

       



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