Civil RightsGeneral

Advancing Racial Harmony through Litigation

One Step At A Time
Racial Harmony and Healing
Front Royal, Virginia

On July 9, 2001, at the town counsel meeting, the Mayor of Front Royal, Virginia, Clifford L “Clay” Athey, Jr., apologized to two minority employees for the past treatment they endured by the town and announced the resolution of two federal law suits. He stated, “The Town of Front Royal is firmly committed to racial harmony and healing and regrets the manner in which Mr. Blackman and Mr. Thompson were treated.” Because of the town’s size the maximum compensatory award permitted under Title VII is $100,000, nevertheless the town announced the financial terms of the settlement. Under those terms, payment to the two plaintiffs including their attorneys fees was to be made at a minimum of $414,500, and that due to a structured settlement with lifetime payments of $17,450 per year, the plaintiffs may recover as much as $763,500.  Listen to audio — Apology by Front Royal 
“The Town of Front Royal is firmly committed to racial harmony and healing and regrets the manner in which Mr. Blackman and Mr. Thompson were treated.”

Thomas H. Roberts, a civil rights attorneys with the Richmond firm of Thomas H. Roberts & Associates, P.C. stated that he was pleased with the results. Roberts added that the suits had been filed because the town had engaged in and refused to correct rampant racism. One of the town’s supervisors, Clarence Deavers, admitted that he told the plaintiff Isaac Thompson that he and others were involved with the KKK and admitted discouraging Thompson from complaining about the treatment he was receiving at his hands. He singled out Isaac Thompson, one of only two blacks employed by the town, for denigration, harassment, humiliation and harsh treatment. Thompson was threatened that if he spoke out objecting to the treatment, he would end with the same fate as the Reverend Martin Luther King. The suit alleged that the director of Public Works, not only refused to promote Thompson, but did nothing to curb the racial abuse.

Roberts stated “While attitudes of the heart may be slow to change, if at all, since this firm took up the cause of Isaac Thompson and Charlie Blackman, the Town of Front Royal has changed. Mr. Thompson, has now been given the opportunities that were previously withheld and he is excelling–he’s a great worker! Charlie Blackman, although now retired, has the satisfaction of knowing that the town is changing.”

The facts of the two cases are discussed by Senior United States District Judge James H. Michael, Jr., in the decisions of Blackman v. Town of Front Royal, 2000 U.S. Dist. LEXIS 17512 (W.D. Va. 2000) and Thompson v. Town of Front Royal, 117 F. Supp. 2d 522 , 2000 U.S. Dist. Lexis 15254 (W.D. Va. 2000)

Roberts stated, “I love my clients, Tompson and Blackman–they are the salt of the earth. They stood up, not to create dissension, but to hold people accountable and to bring about positive change! Virginia is a better place because of them.” The mayor concluded, “The Council is pleased to put these matters behind us and move on to a greater future for the Town.”

Thomas H. Roberts, counsel for the plaintiffs, explained that the summary judgment decisions by Senior District Judge Michael have created some significant inroads for plaintiffs in race discrimination cases. “First of all, we now have some clear case law that holds that certain conduct creates an objectively hostile work environment,” Roberts states. “Defense lawyers for years have been able to cite dozens of cases where the alleged discrimination did not meet the ‘severe or pervasive’ elements required under Title VII case law.

Typical for these decisions is, for example, Williams v. The Port of Authority of New York and New Jersey, 880 F. Supp. 980, 991-92 (E.D.N.Y. 1995) which holds that “sporadic, episodic use of racial epithets … does not constitute a hostile work environment.” The Town of Front Royal used these cases as the basis for its argument that the use of the “N-word” on at least nine occasions in a 25-month period was not frequent enough to create a hostile environment.

But the district court rejected these arguments. It held that the conduct alleged by both plaintiffs was sufficiently severe or pervasive and denied summary judgment. “With these two cases we were thus able to contribute to the small body of case law that establishes what kind of conduct is sufficient for a Title VII claim,” Roberts reports. He hopes that these cases will be helpful to other plaintiffs.

The second huge advancement of the law deals with the affirmative defense created in Faragher v. Boca Raton, 524 U.S. 775, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 141 L. Ed. 2d 633, 118 S. Ct. 2257 (1998); Brown v. Perry, 184 F.3d 388 (4th Cir. 1999). This affirmative defense is composed of two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765.

The question answered by the District Court in the Front Royal cases was whether or not employers could avail themselves of the affirmative defense at the summary judgment stage. Until now, we have only had some language in a concurring opinion by Circuit Court Judge Michael suggesting that this new defense may not be available until trial. See Lissau v. Southern Food Service, Inc., 159 F.3d 177 (4th Cir. 1998)(J. Michael concurring). This is now black-letter law in the Western District. “Judge Michael has made it a little easier for plaintiffs in discrimination cases to get their cases past some of the legal hurdles previously obstructing plaintiffs from the jury,” Roberts triumphs.