We’ve heard about racial profiling by the police. But what about by employers? A state agency, the Nebraska Equal Opportunity Commission, made the very broad (and aggressive) finding that, “Racial profiling occurs when an employee . . . is questioned, disciplined, and terminated, on the basis of his race.” That is a strange definition of racial profiling to me. It was to a federal court as well, who rejected this definition in the case of Anderson v. The Nebraska Medical Center.
A patient at the Medical Center complained that an employee drawing blood had held her hand between his legs against his penis during the procedure. She described him as a “large black man.” Six months later, another patient complained that an employee drawing her blood had run his uncovered penis over her hand. She similarly described him as a “heavy set black man in a white lab coat.” The Medical Center conducted an investigation in each instance, identifying the employees who had conducted blood draws for the patients. The employee in question, a tall black man weighing 280 pounds, was the only one who met the descriptions. After being counseled the first time, he was terminated for the second incident.
The employee filed a charge of discrimination with the NEOC, which found that there was “reasonable cause” to believe that he had been terminated because of his race. The employee then sued the Medical Center for race discrimination, relying on the NEOC’s finding of “racial profiling.” The Court, however, criticized the NEOC’s definition of racial profiling. It noted that racial profiling occurs when:
- Suspects for a crime are developed based on statistical data,
- Suspects are developed based on racial stereotypes, and
- A person is subjected to a higher level of scrutiny or surveillance by law enforcement officers, merchants, landlords or employers, because of the person’s race.
The Court went on to state, reasonably and logically, “But when an eyewitness identifies a perpetrator with a physical description, and authorities narrow the suspects based on that physical description, that is not “profiling.” It further noted that, “It was not inappropriate, nor was it ‘racial profiling’ for the Hospital to try to identify the perpetrator through the use of the patients’ descriptions.” Thus, the Court found that the employee was terminated because of his misconduct, not because of his race, and threw out the lawsuit against the Medical Center.
“Racial profiling” is such a loaded term, with many negative connotations. It’s good to know that employers won’t be automatically tagged with that term when they reasonably identify an employee because of a complaint containing a description that includes the miscreant’s race. After all, our race is one of the most readily identifiable and obvious things about each of us.