Last year, Chief Justice John Roberts, in ruling with the majority that Section 4 of the Voting Rights Act was unconstitutional, wrote “Blatantly discriminatory evasions of federal decrees are rare.” Even if true, this statement does not speak to the prevalence of subtly discriminatory actions, often based on hidden, deep-seated prejudices, such as those demonstrated recently by Los Angeles Clippers owner Donald Sterling. Sterling showed the world that an outward appearance of racial neutrality may serve to mask inner bigotry that may affect actions taken by an employer.
The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing Title VII of the Civil Rights Act of 1964, which prohibits race discrimination in the workplace, has noted that race discrimination may take less-than-obvious forms. This includes race discrimination that involves disparate treatment based on an individual’s association with a person of a certain race (or status in another “protected class”―discussed in previous JGL blog posts here and here―such as those with disabilities), referred to as “association discrimination”.
While Title VII does not include provisions explicitly prohibiting association discrimination, it has been interpreted broadly by the courts to protect individuals victimized by employment decisions based in whole or in part on an individual’s association with someone of a particular race. For example, in Holcomb v. Iona College, the employer terminated a white head basketball coach, claiming that the removal stemmed from a poor-performing team that needed an overhaul. Coach Holcomb, however, claimed that he was fired because his wife was black, and Iona’s athletic director had openly disclosed his dislike of interracial marriages and even expressed his desire to decrease the presence of African-Americans at basketball events. Iona argued that even if the latter were true, the Plaintiff’s own race was not at issue, and thus, he had no standing under Title VII.
The Second Circuit Court of Appeals disagreed, noting that when an adverse employment action arises out of an employer's disapproval of interracial association, the employee is being subjected to the adverse action due to his own race. As such, he has a cause of action for racial discrimination cognizable under Title VII. As explained by the EEOC, Title VII’s protection against association discrimination is not limited to situations involving the race of a spouse; it also protects against discrimination based on association with friends of a certain race, as well as memberships in or association with a race-based organization or group.
In the case of Donald Sterling, even if he somehow manages to retain ownership of the Clippers, he likely could face other individual causes of action based on race discrimination, and perhaps association discrimination. After clearly expressing his disapproval of the association with African-Americans he may be subject to claims by all Clippers employees, regardless of race, who have been adversely affected by Sterling’s employment decisions, provided they can prove that the decision was based, at least in part, on their association with African-Americans. Whether blatant or subtle, such claims may be on the rise, and justifiably so.