Is this Discrimination?

[mitousmom]

...They call them 'Hawaiians.' Or 'native Hawaiians.' Just not 'Native Hawaiians.'

Mainland American does the same thing. I can call myself an American native or a native American (ethnically I'm a European mutt) and not be committing a faux pas. But I shouldn't go around calling myself a Native American, for I am not.

You can call yourself whatever you choose. However, if you are not a Native American or perceived as one by your employer, you will get nowhere with an employment discrimination allegation based on your race/national origin, Native American. If you are of European descent with no Native American ancestry, you aren't a Native American. We aren't talking here about a faux pas, as in a violation of a social rule, we are talking about a potential violation of a federal statute.

 

[>Charlotte<]

If you don't get it, you don't get it!

You do know that believing you're wrong isn't the same as "not getting it", right?

 

[mitousmom]

You do know that believing you're wrong isn't the same as "not getting it", right?

It's not really a questioning of believing me, or thinking I'm right or wrong. It's a question of understanding the EEO laws and their application. Your statements don't suggest that you are applying the fundamentals of federal EEO law, i.e., "don't get it." You might want to do some reading on the subject. There are a lot of discussions out there. You might start with EEOC's compliance manual on race discrimination at http://www.eeoc.gov/policy/docs/race-color.html#VA or its revised enforcement guidance at http://www.eeoc.gov/policy/docs/disparat.html. Or you can Google on "race disparate treatment employment discrimination."

 

[CatugalCat]

Is This Discrimination?

Forgive me for not clarifying "Hawaiian" I meant a person with Hawaiian blood, and the proper term for that would be Kanaka Maoli. But in my first thread when I said Hawaiian I meant persons with Hawaiian blood. The other driver that they rehired 5 times had quit in the middle of his shift 5 times leaving the company scrambling to find a driver to complete his runs. This particular driver is unreliable, has a bad attitude, and the dispatchers and personnel director did not want him to come back to work. Even the owners daughter who is the general manager did not want him back. Then low and behold her mother and father overruled her and brought him back.

 

[fairisfair]

By your definition the OP is a Hawaiian. I assume that he lives in Hawaii. He couldn't commute daily to Hawaii to drive a truck. Obviously he's not talking simply about himself and people who live in Hawaii. Besides, he states, "I do not have hawaiian blood, and those of us that do not seem to get called into the office for every little thing."

If you can't see the distinction between people of non-Hawaiian descent who live in Hawaiian and Native Hawaiians or those with "Hawaiian blood," as the OP phrases it, so be it. Fortunately, the federal EEO laws make that distinction. I can see the difference you fool,I merely said that SJ was correct in that all persona who lived in Hawaii could be considered hawaiians. are you saying they are not??

Every disparate treatment allegation is about two individuals, one class member and one non-class member treated differently under similar circumstances. And, under the seminal disparate treatment discrimination ruling by the Supreme Court, that's all that is needed. There is no requirement for a "plethora of repetitive discriminatory practices." However, this OP states that those who do not have Hawaiian blood, "seem to get called into the office for every little thing." So, he does provide information that suggests a pattern of discrimination against non-Hawaiians. and one that never apprently bothered him a bit until he quit and was not hired back. Really??? you happen to know somehow that these circumstances are the same? other than the fact that they both quit. What exactly is the "same" about the situation??? oh so you DON'T know do you???

For federal EEO purposes, this is a failure to rehire case. Contrary to this unreliability nonsense, we don't know why the employer didn't rehire the OP and we don't know why the employer decided to rehire another employee five times. The OP believes it was because he wasn't Hawaiian, because the employee rehired five times was Hawaiian. He also believes that Hawaiians generally are treated more favorably when it comes to infractions. He makes out a prima facie case of disparate treatment discrimination.

you know as well as I do that this will not come to a cause of discrimination

Should he file, the EEOC or the state equivalent will require the employer to provide its legitimate non discriminatory reason for not rehiring the OP and its reason for rehiring the Hawaiian. They also may require the employer to provide information on its disciplinary practices. They will be looking for facts and ultimately evidence, not making up reasons for the employer's difference in treatment.


If you don't get it, you don't get it! The OP is the one who needed the information. He got it. Subsequent readers who need similar information will have it. They will also see that people disagree about the interpretation of the law and the "facts" presented, so it's best to go to an authority. Consulting with EEOC or a state equivalent is free.

No one said that the poster should not go to the EEOC. No one WOULD say that. All I said is that it is a waste of time. Especially THEIRS.

 

[mitousmom]

No one said that the poster should not go to the EEOC. No one WOULD say that. All I said is that it is a waste of time. Especially THEIRS.

I don't see how going to EEOC is a waste of anybody's time. The OP would have the benefit of the administrative authority's review of his situation and if EEOC follows its policies and procedures, it would be doing its statutory mission.

My understanding of the OP's allegation was that he was alleging difference in treatment because he was not Hawaiian, the protected class under the EEO laws. It didn't dawn on me that some of the professional or frequent responders didn't know that such a protected class existed.

How do you know that the pattern of disparate treatment didn't bother the OP prior to the incident that prompted his posting? How do you know whether he previously suffered any harm as a result of it. He has no standing to file a complaint or charge of discrimination under the EEO laws, unless he has suffered harm. The only thing we know from his posting, is that when he did suffer harm, i.e., he was not rehired, he considered that pattern and the fact that a Hawaiian had been rehired after quitting, in coming to his conclusion that he had suffered illegal discrimination because he was not Hawaiian.

I'll repeat one more time that this is a failure to rehire case, not a "quitting case." The OP doesn't tell us why the employer told him he wouldn't be rehired. Because the OP focuses in his posting on the fact that he had quit and provides as a comparator another driver who quit, at least I am operating on the assumption that he wasn't rehired because he quit. And, contrary to your statement we do know the circumstances of at least one incident, in his initial posting he tells us that comparator quit in the middle of a run. In his most recent posting, the OP states, "The other driver that they rehired 5 times had quit in the middle of his shift 5 times leaving the company scrambling to find a driver to complete his runs."

I have no idea whether the OP will prevail in his allegation. All I do know is that the facts he provides establish a prima facie case of racial/national origin discrimination. And, in that regard, he is way ahead of many people who allege discrimination to EEOC or other administrative bodies or when seeking advice of counsel. If the evidence obtained by EEOC or whomever supports his facts about his comparator, the burden shifts to the employer to explain its treatment and to provide a legitmate non-discriminatory reason for it that will withstand prextext. Based on my experience, this employer, given these facts, has a difficult burden to overcome. But, who knows. Maybe the Hawaiian driver is the owners' publicly unacknowledged illegitimate son; they will produce a supporting birth certificate; and they will argue that this is simply a case of legal nepotism. Of course, that argument probably won't work for the OP's facts regarding the general disparate treatment of non-Hawaiians.

 

[>Charlotte<]

First, I want to say again that CatugalCats/he absolutely should contact the EEOC. One should take anonymous Internet advice with much more than just a grain of salt, and I hope any poster considers the information offered here as nothing more than a starting reference for his own research, and a general idea of what he might expect.

So, okay, CatugalCat, let's put aside the fact that you quit since nobody is going to change their opinion of whether or not that's an important factor.

It is not enough to assert that both you and the Hawaiian wanted the same thing, and he got it and you didn't. It's also not enough to assert that he got rehired because he's Hawaiian. If it gets that far (and I'm going to say one more time that it won't), in response to your claim of illegal discrimination, your employer need only articulate a non-discriminatory reason for their decision. They do not have to provide evidence of their decision's legitimacy. The burden will be on you to contradict that response and you're going to have to be able to back up that contradiction.

In other words: when you say "XYZ Company didn't rehire me because I'm not Hawaiian", they're going to say "That's not correct. We didn't rehire him because _________." Only you have any way of knowing what might fill in that blank. Whatever it is, you're going to have to successfully contradict it. Can the employer respond that in spite of the indication of unreliability due to his quitting, there were superseding factors that made the Hawaiian a desireable--and therefore, rehireable--employee? By their standards, not yours. Can the employer respond that, in spite of their proven willingness to rehire employees who have quit, there were superseding factors that made you undesireable as a re-hire? By their standards, not yours.

I don't like going around in circles and since there's nothing more I can say without repeating myself, that's it for me. But I do want to say don't be confused by the differing opinions and disagreements as to what is "correct" you see here. These kinds of arguments are pretty much how any case plays out. Perhaps you'll have better luck this time than you had with your other EEOC claim four years ago when they ruled you did not have a case. And although you were fired for failing a drug test in 2004, you went on to find other employment, so that worked out for you okay. Maye this one will work out for you, too.

Have a safe Memorial Day weekend, everyone.

 

[fairisfair]

I don't see how going to EEOC is a waste of anybody's time. The OP would have the benefit of the administrative authority's review of his situation and if EEOC follows its policies and procedures, it would be doing its statutory mission.

My understanding of the OP's allegation was that he was alleging difference in treatment because he was not Hawaiian, the protected class under the EEO laws. It didn't dawn on me that some of the professional or frequent responders didn't know that such a protected class existed.

How do you know that the pattern of disparate treatment didn't bother the OP prior to the incident that prompted his posting? How do you know whether he previously suffered any harm as a result of it. He has no standing to file a complaint or charge of discrimination under the EEO laws, unless he has suffered harm. The only thing we know from his posting, is that when he did suffer harm, i.e., he was not rehired, he considered that pattern and the fact that a Hawaiian had been rehired after quitting, in coming to his conclusion that he had suffered illegal discrimination because he was not Hawaiian.

I'll repeat one more time that this is a failure to rehire case, not a "quitting case." The OP doesn't tell us why the employer told him he wouldn't be rehired. Because the OP focuses in his posting on the fact that he had quit and provides as a comparator another driver who quit, at least I am operating on the assumption that he wasn't rehired because he quit. And, contrary to your statement we do know the circumstances of at least one incident, in his initial posting he tells us that comparator quit in the middle of a run. In his most recent posting, the OP states, "The other driver that they rehired 5 times had quit in the middle of his shift 5 times leaving the company scrambling to find a driver to complete his runs."

I have no idea whether the OP will prevail in his allegation. All I do know is that the facts he provides establish a prima facie case of racial/national origin discrimination. And, in that regard, he is way ahead of many people who allege discrimination to EEOC or other administrative bodies or when seeking advice of counsel. If the evidence obtained by EEOC or whomever supports his facts about his comparator, the burden shifts to the employer to explain its treatment and to provide a legitmate non-discriminatory reason for it that will withstand prextext. Based on my experience, this employer, given these facts, has a difficult burden to overcome. But, who knows. Maybe the Hawaiian driver is the owners' publicly unacknowledged illegitimate son; they will produce a supporting birth certificate; and they will argue that this is simply a case of legal nepotism. Of course, that argument probably won't work for the OP's facts regarding the general disparate treatment of non-Hawaiians.

blah blah blah blah!!!

Does this employer even fall under EEOC regulations??

Did you bother to ask??

sounds like a small mom and pop organization to me.

Oh, but that is just a minor detail.

 

[fairisfair]

First, I want to say again that CatugalCats/he absolutely should contact the EEOC. One should take anonymous Internet advice with much more than just a grain of salt, and I hope any poster considers the information offered here as nothing more than a starting reference for his own research, and a general idea of what he might expect.

So, okay, CatugalCat, let's put aside the fact that you quit since nobody is going to change their opinion of whether or not that's an important factor.

It is not enough to assert that both you and the Hawaiian wanted the same thing, and he got it and you didn't. It's also not enough to assert that he got rehired because he's Hawaiian. If it gets that far (and I'm going to say one more time that it won't), in response to your claim of illegal discrimination, your employer need only articulate a non-discriminatory reason for their decision. They do not have to provide evidence of their decision's legitimacy. The burden will be on you to contradict that response and you're going to have to be able to back up that contradiction.

In other words: when you say "XYZ Company didn't rehire me because I'm not Hawaiian", they're going to say "That's not correct. We didn't rehire him because _________." Only you have any way of knowing what might fill in that blank. Whatever it is, you're going to have to successfully contradict it. Can the employer respond that in spite of the indication of unreliability due to his quitting, there were superseding factors that made the Hawaiian a desireable--and therefore, rehireable--employee? By their standards, not yours. Can the employer respond that, in spite of their proven willingness to rehire employees who have quit, there were superseding factors that made you undesireable as a re-hire? By their standards, not yours.

I don't like going around in circles and since there's nothing more I can say without repeating myself, that's it for me. But I do want to say don't be confused by the differing opinions and disagreements as to what is "correct" you see here. These kinds of arguments are pretty much how any case plays out. Perhaps you'll have better luck this time than you had with your other EEOC claim four years ago when they ruled you did not have a case. And although you were fired for failing a drug test in 2004, you went on to find other employment, so that worked out for you okay. Maye this one will work out for you, too.

Have a safe Memorial Day weekend, everyone.

ya think??

You do the same CLT. oh and make it a FUN one as well!!!!

 

[mitousmom]

It is not enough to assert that both you and the Hawaiian wanted the same thing, and he got it and you didn't. It's also not enough to assert that he got rehired because he's Hawaiian.

Under EEOC's interpretation, which is consistent with several Supreme Court decisions, all an individual needs to assert to file a charge of employment discrimination it that s/he was discriminated against because of a protected factor. If you have evidence to the contrary, you need to supply it.

I always suggest to complaining individuals that they should have some facts to back up the assertion. The most likely backup is the identify of a similarly situated individual not of the complaining individuals' protected group that was treated more favorably, but there are others, such as direct evidence of bias. Otherwise, it's going to be hard to get EEOC to spend its resources to process the charge.

If it gets that far . . . in response to your claim of illegal discrimination, your employer need only articulate a non-discriminatory reason for their decision. They do not have to provide evidence of their decision's legitimacy.

Correct, but the employer does have to provide evidence to address and rebut a decision that the LNDR is a pretext for discrimination. If EEOC is doing what it's supposed to do, it will get the LNDR from the employer and examine it for pretext. That examination will include requesting evidence from the employer to support that its LNDR is not a pretext.

No one here knows what LNDR the employer will articulate. If it told the OP a reason for not rehiring him, there is nothing the prevents the employer from giving EEOC a completely different one. EEOC and other administrative agencies do not have the luxury of trying to guess what the employer will say and base its processing decision on its best guess. They have to deal with the information the employer provides.

We obviously have different views on how EEOC will view and handle this case. That's okay. I been involved in too many matters with the EEOC, and know that diffferent offices and different staff within an office can handle a case differently, and sometimes based on the time of the year. But, I am troubled by the difference in the interpretation and application of EEO law.

 

[mitousmom]

blah blah blah blah!!!

Does this employer even fall under EEOC regulations??

Did you bother to ask??

sounds like a small mom and pop organization to me.

Oh, but that is just a minor detail.

It would be helpful if you read the postings. Post #8 addresses the question of employer size.