Black Haitian employees worked for a Florida company in positions where customers did not interact with them. These Haitian employees claimed that management actively discouraged them from seeking employment in other parts of the business (where they might be seen by customers). They also claimed that any open jobs outside of their “hidden” area were promptly filled by Latino or non-Haitian employees.

The employees claimed that during their employment they were allegedly referred to as “f----ing Haitians” by managers and supervisors. The employees also claimed that when the business elevator broke, only Haitian employees were told to carry heavy items up and down the company’s stairs, but the Latino staff was never required to do this work. When the employees asked management to fix the broken elevator, one manager allegedly referred to the Haitians as “slaves.” The employees also claimed that their supervisors reprimanded them for speaking Creole, even amongst themselves, while Hispanic employees were allowed to speak Spanish.

The black Haitian employees complained to human resources about discrimination and about having a “racist” supervisor but, instead of addressing these complaints, the employer fired the entire department made up primarily of black Haitians.

Can a Florida business use a staffing agency to get rid of black Haitian employees and replace them with Latinos?

The business then replaced them the same day with a staffing agency workforce of mostly light-skinned Hispanics.

The employees filed charges of discrimination with the Equal Opportunity Commission (EEOC), alleging discrimination based on race, color and national origin.

The Florida business denied doing anything wrong, claiming that the hiring of new employees was handled by a staffing firm. Specifically, a business representative took the position that the staffing was put in the hands of a third-party company and the Florida business had no influence or control over who that third party employed in terms of ethnic makeup.

The EEOC found cause to believe that the South Florida employer violated Title VII of the Civil Rights Act. The Florida employer refused to resolve the matter in terms agreeable to the EEOC, so the EEOC filed a lawsuit against the Florida employer in federal court in the Southern District of Florida. EEOC v. SLS Hotel South Beach (and affiliated entities) (Case No.1:17-cv-21446).

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At the end of July 2018 the EEOC announced that the Florida employer will pay $2.5 million and provide other relief to settle the discrimination lawsuit.

The $2.5 million settlement amount will be awarded to 17 black Haitian dishwashers, 15 of which are represented by a Florida law firm. The employer also agreed to provide equitable relief over a three-year period that includes comprehensive training for human resources officials, management personnel, and hourly employees across multiple South Florida locations. Further, an independent consent decree monitor will attend all required training sessions and provide comprehensive reports to the EEOC. The EEOC will also receive comprehensive data on any terminations, layoffs, or involuntary separations that may occur over the three-year period across the properties in the Miami region.

EEOC spokespersons warned South Florida employers that they should “not be able to avoid liability by using a staffing agency to discriminate when it cannot lawfully do so on its own,” and “Consistent with the agency's strategic enforcement goals, the EEOC will be vigilant in ensuring employment discrimination is not hidden behind increasingly complex business relationships, including the outsourcing concept,” and “Employers cannot use outsourcing as a proxy for discriminatory practices. The EEOC will continue to fight to prevent these discriminatory employment practices, especially against vulnerable workers,” and “EEOC will continue to protect workers in the hospitality industry, including the black Haitian community that makes up a significant part of the South Florida workforce.”

This lawsuit reminds Florida businesses of the dangers of outsourcing to staffing companies. Many Florida businesses have turned to staffing companies to try and save money, because staffing companies often pay lower wages and offer fewer benefits.

The take-home message to Florida employers is that it can be very expensive to use a staffing agency as a conduit to discriminate.

As we reported earlier, one of the EEOC’s six priorities in how they will pick cases to pursue is to attack discrimination in complex employment relationships and structures with a focus on staffing agencies, temporary workers, independent contractor relationships, and the on-demand economy.

If you need any assistance in disciplining or terminating a worker or responding to an EEOC charge of discrimination concerning your Florida business, please email the Law Office of David Miklas, P.A. or call us at 1-772-465-5111.

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