An employer may decide to have its workforce closely mirror the local population to which it serves. For instance, a store frequented by predominantly Spanish speakers may require management to hire Spanish-speaking or bilingual employees. Some, if not most of the employees that fall into this category, may be Hispanic.
This business practice was attacked by the Equal Employment Opportunity Commission (E.E.O.C.). In E.E.O.C. v. AutoZone, Inc., et al., No. 15-3201 (7th Cir. June 20, 2017), the E.E.O.C. brought suit on behalf of a Black worker who was transferred from one of defendant’s stores that served predominantly Hispanic customers to a different store. The employee (named Stuckey) did not lose any benefits or stature as a result of the transfer. He filed a discrimination charge and the E.E.O.C. brought suit under a relatively under-utilized section of Title VII of the Civil Rights Act of 1964, as amended, which is 42 U.S.C. § 2000e-2(a)(2), which reads:
(a) Employer practices
It shall be an unlawful employment practice for an employer—
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(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
The E.E.O.C. argued that Stuckey did not have to suffer any tangible loss, such as decreased compensation, in order for section 42 U.S.C. 2000e-2(a)(2) to be violated. The E.E.O.C. maintained that any transfer to limit, segregate or classify employees because of race automatically violates the statute. Slip op. at 7. The Seventh Circuit disagreed.
42 U.S.C. 2000e-2(a)(2) casts a wider net than subsection (a)(1) because any employment practice under subsection (a)(2) that “would deprive or tend to deprive” any individual of opportunities would violate that subsection. Slip op. at 10. But Stuckey suffered no tangible loss as a result of the transfer and more importantly, there was no evidence put forth by the E.E.O.C. that the lateral transfer would tend to deprive Stuckey of employment opportunities in the future. Id.
It could certainly be the case that multiple lateral transfers could work against an employee working up the proverbial management ladder. The E.E.O.C. never pursued that evidentiary line, instead resting solely on a statutory argument to carry the day. Employers catering toward their ethnic clientele need to be cautious that employee transfers from one store to another do not disadvantage an employee’s advancement and any concomitant benefits within the company.
Burr Ridge Attorney 