By John Miller, Ph.D.
Damian Phillips submitted complaints against the Loudon County Public Schools and School Board alleging race and disability discrimination as well as retaliation (Phillips v. Loudoun Cty. Pub. Schs, 2020). Phillips is an African-American male who had been diagnosed with a permanent disability due to nerve damage that causes muscular dysfunction to his shoulder. Phillips also possesses two Masters: one in Education and the other in Special Education. Phillips served as a teaching assistant and head freshman football coach at Freedom High School, which is part of the Loudon County Public Schools education system during the 2014 season ((Phillips v. Loudoun Cty. Pub. Schs, 2020).
In 2015, Phillips applied for the position as the head varsity football coach, after which he received an invitation to interview before members of the Loudon County Public School Board. When Phillips appeared for the head varsity football coach, he alleged that Freedom High School Principal Doug Fulton made a significant racial slur against him in regards to being the head varsity football coach at Freedom High School (Phillips v. Loudoun Cty. Pub. Schs, 2020). After the comment, Phillips contended that Freedom High School Athletic Director, Brett Miller, as well as an unidentified participant from the community, laughed at the comment. Furthermore, during the interview, Phillips stated that Fulton mentioned that he did not need another “disability” in his school (Phillips v. Loudoun Cty. Pub. Schs, 2020).
Although he claimed to be in good standing with the school district, Phillips left Freedom High School due to an undisclosed illness in July 2015. In 2017, Phillips had sufficiently recovered from his illness to apply for several different coaching and teaching positions at Loudon County High School, Dominion High School, and South Lakes High School. Phillips asserted that he did not attain any of these positions due to biased information from Fulton to the selection committee members at Loudon County High School, Dominion High School, and South Lakes High School (Phillips v. Loudoun Cty. Pub. Schs, 2020). For example, Phillips contended that he was eliminated from consideration for a position because the school allegedly called Doug Fulton as a reference instead of a teacher who had previously worked with Phillips at Freedom High School (Phillips v. Loudoun Cty. Pub. Schs, 2020). Phillips contended that he was qualified to teach special education due to his bachelor’s and graduate degrees, a provisional teaching license, and previous work experience. He also indicated that prior coaching experience and sport participation, as well as CPR and first aid training, supported his qualifications for the coaching positions he had applied. Finally, Phillips alleged that his disability did not impact his ability to perform the essential functions of his job as a teacher or a coach.
Phillips alleged that the perceived adverse actions of the school defendants were “continual”; that Fulton’s disparaging comments constituted race and disability discrimination; and that the school defendants use of the performance evaluation constituted retaliation (Phillips v. Loudoun Cty. Pub. Schs, 2020). Phillips believed that he was discriminated against based on race, disability, as well as retaliation under Title VII and the Americans for Disabilities Act (ADA). The allegations that Fulton played a decisive role in Phillips’s failure to obtain a position due to his discriminatory views confirmed an indication of discrimination that survived the motion to dismiss (Phillips v. Loudoun Cty. Pub. Schs, 2020).
The court also ruled that similar to the Title VII failure to hire claim, Phillips met the remaining aspects of his prima facie case for his ADA failure to hire claim (Phillips v. Loudoun Cty. Pub. Schs, 2020). However, under the retaliation claim, the court revealed that Phillips did not contend that neither human resources administrator nor Fulton possessed any information concerning Phillips’s alleged protected activities, which is a state requirement for a retaliation claim. Thus, the court granted in part (e.g., failure to hire based on race and disability) and denied in part (e.g., retaliation) the allegations made by Phillips (Phillips v. Loudoun Cty. Pub. Schs, 2020). Since the court allowed Phillips to continue his claims regarding failure to hire based on race and disability, they will be discussed in the next sections.
Failure to Hire Based on Race
The Title VII Civil Rights Act of 1964 states that: “All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin” (42 USCS § 2000a). When the Civil Rights Act passed as law in 1964, it broadly addressed employment inequality based on race, color, religion, or national origin. Title VII of the Civil Rights Act made it illegal for private employers to discriminate on a national basis for the first time (Kim, 2020).
The majority of cases dealing with Title VII intend to hold employers liable for discriminatory employment practices. When race discrimination is alleged in the hiring process, a vital question is: “who is an applicant?” (Kim, 2020). For race discrimination to be proven, the court in McCain v. Waste Management, Inc. (2000) revealed that the plaintiff must demonstrate that the “(1) plaintiff is a member of a protected group; (2) plaintiff applied for the position in question; (3) plaintiff was qualified for the position, and (4) plaintiff was rejected for the position under the circumstances giving rise to an inference of unlawful discrimination.” (p. 574). As viewed in this case, the plaintiff was able to satisfy each of these elements.
There are two theories of liability courts recognize in race discrimination claims – disparate treatment and disparate impact (Miller & Schoepfer, 2018). Title VII prohibits both disparate treatment and disparate impact discrimination (Hochbaum, 2010). Disparate treatment occurs when an employer intentionally treats either an individual employee or class of employees “less favorably than others because of their race, color, religion, sex, or national origin” (Hochbaum, 2010, p. 187). Whereas, disparate impact occurs when “an employer’s neutral employment practice has had a discriminatory effect on a protected class of which the plaintiff is a member” (Sharp, Moorman, & Claussen, 2010, p. 107). In every case, plaintiffs are required to show discriminatory motive, which may be inferred from the situation (Corapi, 2012). For Phillips to be successful using disparate treatment under Title VII, he had to explain how he was treated differently by the potential employer due to his status as one of the Title VII protected categories. Phillips further alleged that a member of one of the hiring committees spoke with Fulton, Phillips was removed from further consideration for the positions. To that extent, courts have ruled that organizations may be held liable under Title VII for relying on word-of-mouth hiring where the effect was to reproduce a racially homogenous workforce (Thomas v. Washington County School Board, 1990). Similar to Fulton’s statement, in which he supposedly used an extremely offensive racial slur in describing Phillips, the court in Biver v. Saginaw Township Community Schools (1986) a male school superintendent stated: “hell would freeze over before he would hire a woman for a boys’ coaching position.” (p. 5).
In Griggs v. Duke Power Company (1971), the United Supreme Court stated “practices, procedure, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze’ the status quo of prior discriminatory employment practices” (p. 43). As a result, Title VII shields individuals from discriminatory employment practices, including practices that are inadvertently discriminatory and occur because of unconscious employer biases (Lee, 2005).
Failure to Hire Based on Disability
The Americans with Disabilities Act (ADA; 1990) was enacted to ensure that equal opportunities for people with disabilities were protected as well as focusing the “the pervasive societal discrimination against people with disabilities”(Zeigler, 2020, p. 1198). Using disability as a basis for his complaints, the court affirmed that he was: (i) disabled within the meaning of the ADA; (ii) otherwise qualified for the position; and (iii) suffered an adverse employment action based on his disability. According to the ADA (1990), an individual with a disability is one “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires” (42 U.S.C.S § 12111). The ADA prohibits discrimination against people with disabilities in employment (Title I), in public services (Title II), in public accommodations (Title III), and telecommunications (Title IV) (Perkins, 2018). Although there are other sections of the ADA (e.g., Title I, Title II, Title III, Title IV, and Title V), Title I of the ADA is the most appropriate to discuss regarding this instant case as it prevents employers from discriminating against a person with a qualified disability.
During an interview with individuals with disabilities, “the ADA prohibits all medical inquiries by an employer as to whether the individual has a disability or the nature and extent of the disability” (Rothstein & McGinley, 2010, p. 3815). In fact, neither medical surveys nor examinations are allowed to be conducted at this stage of the pre-employment phase (Rothstein & McGinley, 2010). Thus, because Phillips disability was not visibly apparent (nerve damage to one of his shoulders), neither Fulton, who during the interview stated that he did not need another “disability” in his school nor any of the other hiring committees could ask Phillips to take a medical exam to determine the extent of the disability during the interview.
Finally, for Phillips to succeed in his complaint, he needed to prove that he could have performed the essential functions of the job with or without reasonable accommodation (Travis, 2016). He was able to communicate that he did not need reasonable accommodation by referring to his previous coaching and teaching positions. However, when individuals with disabilities require reasonable accommodation does not mean that they should be treated differently; it compels that each person within a group to be treated differently (Travis, 2016).
Conclusion
According, the ruling in this case, while the defendants may attempt to disprove the inferences of racial and disability discrimination at the summary judgment stage or at trial, Phillips provided enough information to claim relief for failure to hire under both Title VII and the ADA. Significantly, the failure to hire claims under both Title VII and the ADA was primarily created by the alleged biased utterances of one high school administrator. Perhaps more so today than in the past, it is essential for hiring committee members to understand the legal and social responsibilities placed upon them.
References
42 USCS § 12111. (2020). Definitions. Retrieved from https://advance-lexis- com.lynx.lib.usm.edu/api/document?collection=statutes- legislation&id=urn:contentItem:8SHT-0732-D6RV-H0VT-00000-00&context=1516831.
42 U.S.C. § 2000a(a). (2015) Prohibition against discrimination or segregation in places of public accommodation. Retrieved from https://law.justia.com/codes/us/2015/title- 42/chapter-21/subchapter-ii/sec.-2000a/
Biver v. Saginaw Township Community Schools, 805 F.2d 1033, 1986 WL 18062 (6th Cir. 1986)
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Thomas v. Washington County School Board, 915 F.2d 922, 925 (4th Cir. 1990).
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Zeigler, M. E. (2020). Disabling language: Why terminology should comport with a social model of disability. Boston College Law Review, 61, 1183-1221.
