I never said the sign was discriminatory. What I said was that some people might view it as discriminatory and that, ladies and gentlemen, is a fact. What will ultimately matter is how the EEOC views it. I really, don't know how they would rule, and neither do the rest of you.
I have filed dozens of discrimination complaints in my lifetime, some even before I become an attorney (you don't have to be a lawyer to represent someone before the EEOC). I am familiar with the law and, more importantly, how the EEOC applies the laws. There are many cases which have been filed rather recently that I never would have dreamed possible fifty years ago. Today, it is possible for an employer to lose a discrimination suit even though he always treated everyone the same in all regards without consideration of race. A long time ago, discrimination was proved by showing disparate treatment, meaning that an employer treated an applicant or employee differently because of race. Then along came something called disparate impact which made it illegal for an employee to adopt a policy which – although race neutral on its face – affected a disproportionately larger number of minorities.
All of you know that at one time an employer could require a college degree as a requirement for employment. Of course, this condition applied to all applicants so it was race neutral. However, the EEOC ruled that the requirement was generally illegal because a disproportionate number of Blacks did not have a college degree.
You should know that the Obama Administration was pushing for a law to restrict the use of criminal records in determining qualification for employment. Actually, no such law was needed because the EEOC already makes any type of disparate impact illegal. In 1989, the EEOC argued that Francisco Rios, a Hispanic male, was discriminated against because the trucking company he worked for had a prohibition against hiring drivers who were convicted of a felony and a disproportionate number of Hispanics had felony convictions. According to the Court's decision:
“The second claim asserted by the EEOC is that Carolina Freight violated section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1), by maintaining a discriminatory employment practice. Specifically, the EEOC contends the defendant's policy which bars applicants for employment with a felony, theft, or larceny conviction resulting in an active prison sentence has a disparate impact upon Hispanics.”
"Section 703(a)(1) provides: "It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual ... because of such individual's ... national origin." The objective of Title VII is to assure "equality of employment opportunities" for all individuals and to remove barriers which discriminate against protected classes or freeze existing inequalities.
See Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S.Ct. 849, 852-53, 28 L.Ed.2d 158 (1971). Although it is undisputed that Carolina Freight's conviction policy is facially neutral, the claim of disparate impact reaches those "practices that are fair in form, but discriminatory in operation."
Id. at 431, 91 S.Ct. at 853.”
E.E.O.C. v. CAROLINA FREIGHT CARRIERS CORP. Leagle.com.
There are many business across the country that have either published or are considering publishing rules that prohibit customers from wearing hoodies. Even some governments – local and state – are at least considering such laws. However, there are some people who consider this policy to have a disparate impact against Blacks. Will a lawsuit be filed? I don't know, but it is at least possible.
Conclusion: We live in a litigious society, and attorneys are looking for possible lawsuits, especially class action suits. The EEOC has been aggressive in looking for signs of discrimination and employers should be on guard. Everything I have read convinces me that a greater percentage of the Black population wears hoodies compared to Whites. This provides a basis for claiming discrimination when rules against hoodies are enforced for no compelling business reason.
If I were a restaurant owner, I would not prohibit hoddies. First, there is the danger of a discrimination suit. Second, I am reasonable certain that some of my Black customers will be offended by the racial implication (if you check the Internet you will find that many Black people think this way). The third reason is purely practical; the rule makes no sense. If someone comes into my restaurant to eat a meal I don't think he is going to rob me whether he is wearing a hoodie or not. Criminals don't like to stick around; they do what they have to do and get the hell out of there. If someone comes in to rob me, he will not give a damn about the sign that says “NO HOODIES.”
The third reason I gave is one you should remember. If someone brings a lawsuit based upon disparate impact and the restaurant attempts to articulate a legitimate business reason for the rule based upon security concerns (such as robbery prevention), some attorney is going to blow that theory out of the water using the same rationale that I have used.
Now I am done with this issue. I will give the rest of you the last word.
Good night.
