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Employment Law Blog
James Tarquin, P.A
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Can Race Discrimination Be Disproven By Favorable Treatment Of Other Employees Of The Same Race?

Expression of racial discrimination by drawing expressions with fingers

Having represented victims of employment discrimination for nearly twenty years, our Marion County, Florida employment discrimination lawyers have learned that employers often defend race discrimination cases by pointing to their allegedly favorable treatment of employees who are members of the same race as the individual claiming race discrimination.  In doing so, employers implicitly maintain that an employee claiming race discrimination must establish that the employer discriminates against all members of the employee’s race in order to prove that he or she was discriminated against on the basis of race.  In other words, according to employers, discrimination against one employee can be disproven solely by favorable treatment of other employees of the same race.

Courts have consistently rejected this non sequitur.  As explained by the U.S. Supreme Court in Connecticut v. Teal, 457 U.S. 440 (1982), it is “clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because [it] favorably treats other members of the employees’ group.”  Thus, favorable treatment of other employees of the same race does not excuse discrimination against even one employee on the basis of race.  Indeed, as observed by the U.S. Second Circuit Court of Appeals in Graham v. Long Island R.R., 230 F.3d 34 (2d Cir. 2000), “an employer may not escape liability for discriminating against a given employee on the basis of race simply because it can prove that it treated other members of the employee’s group favorably.”

Other Employees Of Same Race Treated Favorably

The decision by the U.S. District Court for the Southern District of Mississippi in Jenkins v. Island View Casino, No. 13-352 (S.D. Miss. 2014) further demonstrates that discrimination against one employee on the basis of race cannot be disproven solely by favorable treatment of other employees of the same race.  In that case, Sheila Jenkins (Jenkins) sued her former employer, Island View Casino (Island View), pursuant to Title VII of the Civil Rights Act of 1964 (Title VII).  Jenkins, who is African-American, claimed that she was discriminated against on the basis of her race with respect to hostess rotations and seatings.

Jenkins was employed by Island View as a server.  In this position, Jenkins had to rely on hostesses, all of whom were Asian females, for her customers.  According to Jenkins, the hostesses primarily sat bad tippers in her section.  Jenkins also claimed that although the hostesses were supposed to rotate servers, they sat less people in her section thereby costing her money.  Jenkins asserted that white servers were treated better because they were given customers not known to be bad tippers or more customers.  Jenkins alleged that she complained to several supervisors about her less favorable treatment, but nothing was done about it.  During the litigation, Jenkins admitted that some African-American servers received the same favorable treatment as white servers.

Favorable Treatment Does Not Excuse Discrimination

Island View filed a motion with the trial court seeking dismissal of Jenkins’ race discrimination claim.  In support of its motion for dismissal, Island View argued that Jenkins could not establish that she was discriminated against on the basis of her race because she admitted that some African-American servers “received the same alleged favorable treatment about which” she complains.  Thus, according to Island View, it had disproven Jenkins’ race discrimination claim because the evidence established that it treated other members of Jenkins’ race favorably.  The trial court denied Island View’s motion for dismissal and ruled that Jenkins had presented sufficient evidence of race discrimination to bring her case before a jury for resolution.

In denying Island View’s motion for dismissal, the trial court explained that Island View’s assertion that race discrimination against Jenkins could be disproven by favorable treatment of other African-American servers was “incorrect.”  The trial court pointed out that Jenkins identified white servers who were treated more favorably than she was with respect to rotations and seatings.  This evidence, the trial court observed, was sufficient to establish that Jenkins was discriminated against on the basis of her race with respect to rotations and seatings.  Although Jenkins admitted that some African-American servers received the same favorable treatment as white servers, the trial court explained that such evidence “goes to the weight and sufficiency of Jenkins’ evidence at trial,” and does not preclude Jenkins from proving that she was discriminated against on the basis of race.  In other words, the trial court reasoned, Island View’s favorable treatment of some African-American servers did not defeat Jenkins’ race discrimination claim because Island View did not have to discriminate against all members of Jenkins’ race to illegally discriminate against Jenkins on the basis of race. 

Free Consultation With Ocala Discrimination Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, we have been in the trenches fighting for victims of employment discrimination for nearly twenty years.  If you have been the victim of race discrimination or have questions about your employee rights under employment discrimination laws, please contact our office for a free consultation with our Marion County, Florida employment discrimination attorneys.  Our employment and labor law attorneys take employment discrimination cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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