The U.S. Marshals Service recently settled a longstanding class-action lawsuit alleging racial discrimination in hiring, promotions and job assignments.
On Sept. 26, the U.S. Equal Employment Opportunity Commission (EEOC) granted preliminary approval of the $15 million settlement. The Marshals Service continues to deny any wrongdoing.
Settlement money will go to more than 700 Black workers who served as deputy U.S. marshals or detention enforcement officers from January 1994 until now, as well as Black applicants who were never hired.
The settlement requires the Marshals Service to provide inclusion, equity and diversity (IE&D) and implicit bias training; change its recruitment processes; provide decision-makers with a list of job competencies; and implement a priority consideration program for Black employees.
Christine Dunn, an attorney with Sanford Heisler Sharp in Washington, D.C., who represented the plaintiffs, said the plaintiffs “have shown remarkable courage and resilience throughout this case, some of them fighting this battle for almost 30 years. Thanks to their hard work and dedication, the Marshals Service is making substantial changes to its processes to help ensure greater racial equity.”
As a federal law enforcement agency, the Marshals Service protects federal judges, apprehends federal fugitives, transports federal prisoners and executes federal arrest warrants.
The lawsuit claimed the Marshals Service:
- Failed to provide effective notice of open positions.
- Canceled positions when white applicants did not receive a sufficiently high ranking to qualify for the position.
- Used selective factors to grant promotions to white deputies.
- Used baseless investigations to disqualify Black employees from promotions.
- Excluded Black employees from the most prestigious divisions and duties.
- Hired less-qualified white job applicants instead of better-qualified Black candidates.
- Subjected Black job applicants to standards not applied to white applicants.
- Investigated discrimination claims and proposed remedies to systemic racial discrimination but didn’t implement those remedies.
For example, the Marshals Service allegedly required a Black employee to redo a fitness exam in a different district so that she would not be tested by colleagues, but permitted white employees to undergo fitness exams in their own districts. It also allegedly required a Black employee to fly from Washington, D.C., to Ohio at her own expense to interview for an open position but allowed white candidates to do interviews in the Washington, D.C., area for the same round of applications.
“Such behaviors and comments create liability for hostile work environment generally, but they also support the argument apparently being made here that these negative attitudes about race tainted the hiring and promotion process,” said Fiona Ong, an attorney with Shawe Rosenthal in Baltimore.
Employers should ensure all candidates for hiring or promotion are treated consistently in the application process. “This would include the logistics of the process, such as the location and timing of interviews, but also the actual content of the interview, by asking the same general questions of all candidates,” Ong said.
Administering a Fitness-for-Duty Test
The case started in 1985, when Matthew Fogg, a deputy U.S. marshal, filed a complaint with the Marshals Service, alleging racial discrimination because he had received a harsh reprimand and a transfer as punishment for purportedly misusing a government car, according to court documents.
Twice, he was not given his regularly scheduled performance rating, and he did not receive an expected promotion from the GS-12 to the GS-13 level. He was removed from supervisory responsibilities, taken out of the field and assigned to a desk job. Experiencing “severe psychological stress,” Fogg stopped working in March 1993, according to court documents.
The Marshals Service gave Fogg a fitness-for-duty exam in December 1993 and ordered him back to work in November 1994. The Marshals Service fired him in 1995 for insubordination after he did not comply with two directives to complete another fitness-for-duty exam, according to court documents.
In 1998, a jury found the Marshals Service had subjected Fogg to a racially hostile work environment for 10 years and discriminated against him due to his race. The related class action continued.
Any employment test must be a reliable predictor of whether the person can do the job well and safely. Employers should apply tests consistently and monitor them to ensure they don’t have a disparate impact on certain groups, Ong said.
To be compliant with the Americans with Disabilities Act, “employers using a fitness-for-duty exam must show that the test assesses abilities related to the job in question and the test accurately measures those traits. For example, a disabled employee with a sedentary desk position could argue that running and push-ups do not test whether they are fit to do their job,” said Christoper DeGroff, an attorney with Seyfarth in Chicago.
The class action “suggested that there was different testing based on race and race also impacted how often individuals were selected for testing. An employer cannot use tests or any other element of employment to discriminate against a protected class,” DeGroff said. Likewise, “employers are forbidden from using employment tests as a tool to retaliate against employees. Employers must be able to describe how and why they use fitness-for-duty tests and must also be prepared to explain why individuals in protected classes were treated differently.”
An employee’s refusal to take a test can be grounds for firing, as long as the employer has a legitimate, nondiscriminatory reason for requiring the test, DeGroff said.
