Employment Law Daily Black nanny turned away because white couple expected ‘Filipino nanny’ advances bias claim
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Tuesday, June 4, 2019

Black nanny turned away because white couple expected ‘Filipino nanny’ advances bias claim

By Marjorie Johnson, J.D.

The couple didn’t know her race until the wife picked her up from the train and accidentally sent her a text revealing their disappointment.

A white married couple who fired an African-American nanny the same day she arrived at their home, shortly after discovering that the wife had accidentally sent her a text meant for the husband stating “NOOOOOOOOOOO ANOTHER BLACK PERSON,” failed to convince a federal district court in New York to dismiss the nanny’s Section 1981 race bias claim. Though they argued that the text was a privileged marital communication, that issue did not need to be resolved at this stage since the nanny plausibly alleged the couple’s intent to discriminate by asserting that the wife explicitly told her she was being terminated because their outgoing nanny who did not do the job properly was African-American and that they expected the plaintiff to be Filipino (Maurice v. Plasco-Flaxman, May 29, 2019, Abrams, R.).

Terms agreed upon. The married couple, who sought a new nanny to care for their newborn baby, received the African-American plaintiff’s name from a mutual contact. The wife texted her on July 29, 2016, and the parties set up a time to discuss the position over the phone. When they spoke, they discussed the requirements for the job and agreed that the plaintiff would be paid $350 a day for seven days a week, plus lodging, and would stay with them for six months with a likely extension. They subsequently agreed upon an arrival date and the nanny packed and prepared for an extended stay.

Texting gaffe reveals prejudice. The two texted periodically while she traveled by train to Long Island, where the couple lived. Around 1:47 p.m., the wife texted a description of her vehicle and once the nanny arrived, she stepped off the train and walked toward the car. The wife then unknowingly sent the following text message (which she intended for her husband) to the nanny twice: “NOOOOOOOOOOO ANOTHER BLACK PERSON.” She then stepped out her car and greeted her and explained her current nanny situation and her expectations.

‘Not racist,’ just expected Filipino. Upon arriving at the couple’s residence, the wife introduced the nanny to her family and showed her where she would sleep. Shortly thereafter, she allegedly realized that she had sent the text messages to the nanny and tried to explain that they had been meant for her husband. The nanny then saw the couple outside by their pool having a discussion.

When the couple came back in, the wife told the plaintiff that they were uncomfortable and needed to terminate her. She then explained that the outgoing nanny was also African American and did not do her job properly, and that she and her husband had been expecting a Filipino nanny and not an African-American one. The husband allegedly “agreed,” and they told her that they were “not racist.” She was then placed in an Uber and sent home.

Intent to discriminate. In allowing the nanny’s Section 1981 claim to advance, the court first found she plausibly alleged that both the husband and wife intended to discriminate against her on the basis of race. As to the wife, the nanny claimed the wife explicitly told her that she was terminating her because their outgoing African-American nanny did not do the job properly and that she and her husband expected the plaintiff to be Filipino. The most plausible inference to be drawn from that statement was that the wife associated the plaintiff—an African-American woman—with the outgoing nanny whose performance was lackluster, and that because she was African American and not Filipino, she would be terminated. Thus, she claimed the wife “explicitly acknowledged” that her decision was based on the plaintiff’s race.

Marital communications. Failing to acknowledge these allegations, the couple claimed the nanny’s lawsuit was based solely on the text messages the wife accidentally sent her, which they asserted were protected by the marital communications privilege. At this stage, however, the court did not need to determine whether these messages constitute confidential marital communications since the wife’s alleged spoken statements to the nanny alone sufficiently satisfied the intent-to-discriminate element of Section 198l.

Joint intention. The court also rejected the couple’s contention that the race bias claim could not advance against the husband since there were no allegations he had any personal involvement in a discriminatory act. It was sufficient that the nanny alleged he “agreed” with his wife’s stated reason for terminating her. And while she did not specify whether he agreed with all of the wife’s alleged statements—including her discriminatory ones—or only with her comment that she was “uncomfortable and needed to terminate” her, it could be reasonably inferred that he assented to all of his wife’s stated justifications. Additionally, the wife allegedly stated that “they” were expecting a Filipino nanny and not an African-American one, lending further support to the contention that the couple jointly intended to discriminate against her.

Proposed contractual relationship. Finally, the nanny also plausibly alleged that the discrimination concerned her right to “make and enforce contracts.” The U.S. Supreme Court has made clear that under Section 1981, a plaintiff is entitled to relief “when racial discrimination blocks the creation of a contractual relationship, as well as when racial discrimination impairs an existing contractual relationship.” Even if the nanny and the couple had not entered into a verbal contract prior to August 4, the detailed allegations regarding contract negotiations, the agreed-upon rate and duration of employment, and the parties’ preparation for her to begin working for them clearly demonstrated a “proposed contractual relationship.”

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