Target employees sue for racial discrimination – how to avoid making the same mistake

Three former employees are suing Target in the United States for discrimination, claiming a workplace training document used negative social stereotypes.

And although the case is in the United States, one local legal expert says it contains lessons for Australian SMEs about what constitutes racial vilification.

“American law is quite different to Australian law and most laws are based on constitutional rights, but they do have protections against racial vilification and there are similar protections that also apply in Australia,” TressCox Lawyers partner Rachel Drew told SmartCompany.

According to US Courthouse News Service, Robert Gonzalez, Bulmaro Fabian and Pedro Garcia-Ayala are suing Target saying they suffered crude harassment, discrimination and retaliation at work.

The former employees claim the vast majority of management positions were held by Caucasians and the managers regularly used racial slurs when addressing Hispanic employees.

They also allege they were fired over racial reasons, with two of the employees saying their age (both were 58) was also a factor in their termination.

The training document in question was used at a Target store in California’s Yolo County and it instructed managers to note differences among the Hispanic employees including stating “not everyone eats tacos and burritos”.

The document instructed managers to consider the following:

“a. Food: not everyone eats tacos and burritos;
b. Music: not everyone dances to salsa;
c. Dress: not everyone wears a sombrero
d. Mexicans (lower education level, some may be undocumented)
e. Cubans (Political refugees, legal status, higher education level)
f. They may say ‘OK,OK’ and pretend to understand, when they do not, just to save face.”

Drew says the store manager may have been trying to do the right thing, but it’s a clear breach of law.

“You can imagine this being an example of a manager somewhere actually trying to instruct the staff not to stereotype cultures, but the way it’s been expressed is a breach of discrimination law.”

“You have to be committed to not treating people less favourable and make sure the policy reflect this,” she says.

She says the American and Australian legal systems are different, but in an Australian context this would also be a breach of discrimination laws.

“The Australian discrimination law is based on less favourable treatment, but we do also have laws around racial vilification,” she says.

Drew says, in this case, the training document is essentially “making fun” of a particular race, even though it may have come from good intentions.

The plaintiffs said workplace slurs against Hispanic workers were common, with insults including “Only a ‘wetback’ can work this hard”, “You got to be Mexican to work like this”, and “I’m already sweating like a Mexican”.

One of the employees also alleges he made a complaint to human resources, but following this he was subjected to “more racial epithets” and purposeful humiliation in front of his co-workers.

In relation to the court action, Target spokeswoman Molly Snyder said in a statement to SmartCompany.

“It is never Target’s intent to offend our team members or guests and we apologise. The content of the document referenced is not representative of who Target is. We strive at all times to be a place where our team and guests feel welcome, valued and respected.

“This document, which was used during an isolated conversation about diversity, was never part of any formal or company-wide training and was a mistake. We are sorry,” Target says.

SmartCompany contacted Target’s US head office, but no further information was available prior to publication.

Drew says, in an Australian context, she’s not aware of any similar cases where workplace documents were alleged to be discriminatory, but says discrimination cases in the workplace are common.

Drew says employers need to be aware of their obligations.