EEOC Asks Judge To Reinstate Southern Company Discrimination Case

June 17, 2003 ( - The United States Equal Employment Opportunity Commission (EEOC) is petitioning a federal appeals court to reinstate an employment discrimination suit against Southern Company and its subsidiary Georgia Power Company.

The amicus brief, filed in the 11th U.S. Circuit Court of Appeals, slams Judge Orinda Evans of Georgia’s Northern District for discounting as evidence of discrimination hangman’s nooses found in Georgia Power plants across the state.    Further, the brief criticizes the judge for giving little weight to statistical evidence of discrimination against Southern Co.’s black employees, according to the Fulton County Daily Report.

EEOC attorney Dori Bernstein said the agency weighs in on only a fraction of federal discrimination cases and the decision to do so in this case was based on the strength of the evidence and the fact that it potentially could affect the development of federal discrimination law.   “We have an interest in making sure the courts apply the proper evidentiary standards to allow these cases to go to trial,” she said. That “obviously didn’t occur in this case.”

Case Dismissed

The EEOC brief was filed as part of the appeal of Evans’ March order granting the Southern Co., Georgia Power Co. and two Southern Co. subsidiaries summary judgment in a 3-year-old discrimination suit brought by seven black Georgia Power employees (see  Judge Dismisses Southern Company Race Bias Suit ).

The dismissal to the discrimination cases came via seven orders, one for each plaintiff, granting Southern’s motions for summary judgment.  In the judgment, US District Judge Orinda Evan said that none of the seven plaintiffs established that their race cost them raises or promotions and exposed them to a hostile work environment, according to the Daily Report.

The suit originally sought class action status for an estimated 2,400 black employees. Evans rejected class certification in 2001.

The case, which spanned three years, had citied discrimination in the form of hangman’s nooses in Southern Company subsidiary Georgia Power offices across the state.  Supervisors at the power company contended they never noticed the nooses, which were promptly removed after the suit was filed in the summer of 2000.

Attorneys for the seven plaintiffs said the nooses were symbolic of what was coined the “dark side of Southern Co ‘southern style'” and was an extension of other discriminatory actions.  Overall, the counsel painted a picture of alienation towards Southern’s black employees and the promotion of a working environment that was hostile to African-Americans.

However, spelled out in each of the seven orders was a failure to demonstrate that executives at Southern had engaged in a pattern or practice of discrimination that targeted them personally.  The mere presence of the nooses did not prove that the supervisors who tolerated them were racially biased or discriminated against black employees in promotions and salaries, according to the court.

Evans also rejected expert reports filed by the plaintiffs that indicated “some disparity of compensation between black and white employees.” Saying the statistics were “analytically deficient,” Evans found the data presented by the plaintiffs was generalized and failed to demonstrate that Southern “intentionally discriminated” against them.

Racial Ceiling

However, in asking the appellate court to overturn Evans’ ruling, EEOC attorneys spelled out race discrimination findings of Southern Co.’s internal audits.  One such audit, conducted in 1998, tracked hiring practices at the company and disclosed that interview pools were composed primarily of white men.    Further, a spreadsheet analysis was conducted that showed of 1,342 company positions that were filled, only 13.6% were from a diverse candidate pool and that 98% of promotions resulting from job reassignments went to white males, 2% went to women and none to minority employees.

Additionally, the brief cites a 1999 Georgia Power Diversity report card noting black employees were subject to “a glass ceiling effect” and a “substantial racial disparity in average pay,” as well as in the distribution of annual bonuses and an analysis of Southern Co. labor data by labor economist Janice Madden.  Madden found “statistically significant shortfall in the numbers of promotions awarded to African-American employees, when compared to Caucasian employees … for 1996 through 1999.”

The analysis showed that black employees reported significantly lower compensation than whites. Taking into account experience, education and job function, Madden concluded, “African-Americans are at least as qualified [or more qualified] for promotion as Caucasians in the same salary grade, subsidiary and year.”  The racial differential in promotions was so wide that Madden suggested that any possibility it was not intentional was less than “26 in 10 trillion.”