Illegal Discrimination by Employees Against Customers All they wanted was some beer and other “convenience items.” In the course of trying to buy them, Denise and Alberto were verbally “accosted” by the Conoco store’s clerk. At one point, the clerk pushed a 6 pack of beer off the counter, and onto the floor at their feet. Not content to show their plain ignorance to these two, the clerk picked up the store’s mic and broadcast racial slurs to the rest of the store. What would you do in these circumstances? Well, they kept pretty cool heads, walked outside the store, and used the pay phone to call Conoco to report the clerk. The Conoco representative asked them for the clerk’s name, which they didn’t know, so they walked back around to go in and get her name. They got about as far as the front door and that was it, because the clerk and another employee saw them coming, and locked the door. Eventually, a Conoco district manager investigated the matter, reviewed the silent videotape, and confronted the store clerk. The clerk freely admitted using profanity, racial epithets, and obscene gestures. It reminds me of that country song, “Here’s Your Sign <stupid>”. The manager counseled the clerk, but didn’t suspend her. Denise and Alberto, father and daughter, eventually hired a lawyer who filed a federal court lawsuit against Conoco. That’s right, a federal discrimination case. Here is the rule he based his lawsuit on:
Sounds simple enough. Conoco owned the station in question, and signed the paychecks of this clerk. The very first question, though, was whether the store clerk’s actions at the Conoco-owned store were within the scope of her employment, or outside it. If inside it, she was the “agent” of Conoco, and Conoco could be liable. If not, there was no agency, and no chance of the big bucks from Corporate Big Pockets. Conoco basically said “there’s no history here of any racial discrimination in her past, and this just came out of the blue. Obviously, we don’t want or intend our employees to act this way....what she did, she did of her own doing, not ours.” And the district court bought it, ruling for Conoco-outside the scope, which Judge Barefoot Sanders characterized as a “common sense conclusion.” Who would even contemplate an employee would behave in such a way? But on appeal the court said that should be determined by a jury, and so the case went back down to the trial court for the trial. And so the case arrived back in the trial court. Remember that, by now, the facts of the case had occurred in 1995, the case had been filed in 1997, decided on motions in the trial court in July of 1997 and October of 1998, been appealed to the 5th Circuit, and partially reversed by order dated April 10, 2000. At that point the parties even tried to appeal it to the U.S. Supremes but the case was refused (by order of October 2, 2000). Now, it’s about to make its 3rd court appearance. Simple, fairly undisputed facts, but lots of fuss about the law, and what it does and does not allow. I can only imagine the attorneys fees paid by Conoco. I presume the plaintiffs lawyer took the case on a contingency, probably taking 40% of the expected award. The third court appearance of this case was finally before a jury, and the jury found in favor of Denise and Alberto. Jackpot for the plaintiffs lawyer. But Conoco couldn’t have been pleased, and it wasn’t about to just cave in, so it asked the judge to basically overrule the jury and enter judgment in its favor. The chances of a court overruling a jury are very, very slim. I mean this was a serious, total, last ditch effort on the part of Conoco. But this is Judge Barefoot Sanders we’re dealing with here, and he didn’t hesitate to focus on two very distinct facts, and use those to totally change the jury’s decision. It seems that both Denise and Alberto wanted to purchase some beer, separately. Denise was also purchasing some gas. Denise was up first at the cash register, and she successfully persevered through the racial ignoramussitudes proffered by the store clerk, and purchased her gas and beer. By the end of Denise’s turn at the cash register, Alberto was so incensed he left his beer on the counter (which later hit the floor) and left the store with Denise. And here’s how the trial court ruled: the statute in question says you can’t prevent someone from entering into a contract. Well, Denise did enter into a retail contract, she bought gas and beer. Since she did it, she wasn’t prevented from doing so. Alberto, meanwhile, voluntarily walked away from the chance, and so he never tried to make a contract. Since he never tried, by definition he couldn’t have been prevented. This all meant that there was no action on the clerk’s part that violated the federal statute in question. And suddenly the plaintiff’s lawyer’s jackpot slipped away at the stroke of a judge’s pen. And yet, the case still wasn’t dead. Back up to the appeals court it went, for a second time, to make its fourth overall, but fortunately this time final, appearance. The 5th Circuit confirmed that, in a retail context, to establish illegal racial discrimination a customer must prove (1) that the plaintiff is a member of a racial minority; (2) that the retail establishment had intent to discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities listed in the statute, for example the making and enforcing of a contract. And if the claim is “making and enforcing a contract,” then the plaintiff must also show an actual, not speculative or prospective, contract interest. Case closed, for the reasons stated by Judge Barefoot Sanders. So there you have it. One simple set of undisputed facts, taking from 1995 to 2003 to conclude, at great expense on the part of Conoco to exonerate itself, all because of the actions of one store clerk in the course of a short few minutes. Did you know that your sales clerks, sales staff, and other employees who interact with your customers or clients could subject you to federal anti-discrimination laws? And if the allegation against your business is that the acts were intentional (which they all pretty much are), your insurance carrier will most likely claim the “intentional act” exclusion and deny coverage. As a result, make sure you adequately train your employees to refrain (as in “do it and face my wrath like you’ve never seen it before”) from any acts that could be considered discriminatory, and make sure this policy is included in your written employment policy. Close
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