Shades of Black.

Just as the steamy Fifty Shades of Grey is exciting crowds at the movies, one of the most sizzling issues in employment law is an appellate court’s recent decision that an employee can base her race discrimination claim on “shades of black.”

The case highlights that claims of race and color discrimination don’t always stop at the primary colors, but can arise from discriminatory treatment of employees based on more subtle differences in pigmentation and race.

In Etienne v. Spanish Lake Truck & Casino Plaza, LLC, Esma Etienne claimed the casino did not promote her from bartender/waitress to manager because her boss thought she was “too black.People of all colors” A co-worker verified that the manager would not let “a dark skinned black person” handle certain tasks at the company.

The employer initially obtained summary judgment by pointing to evidence that it had filled five of the six most recent management openings with black employees, and arguing that the person hired over Etienne was more qualified.

But the U.S. Fifth Circuit Court of Appeals – which, by reputation, is one of the more conservative federal appellate courts – held that the evidence of the manager’s statement that Etienne was “too black to do various tasks at the casino,” if made, amounted to “direct evidence that color is likely to have played a role in [the casino’s] employment decision.”

Title VII of the Civil Rights Act of 1964, as amended, is clear that employers may not discriminate based upon “color,” in addition to race and other protected categories. State laws also protect against discrimination based on skin color.

As we celebrate Black History Month, it is clear that Dr. Martin Luther King Jr.’s Dream has not been fully realized yet – but it certainly is the law of the land today that employees can “not be judged by the color of their skin…” And Esma Etienne’s case is living proof of that.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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