Ex-Aide Sues Rep. Johnson for Race, Age Bias

Posted April 28, 2004 at 6:35pm

An ex-scheduler for Rep. Eddie Bernice Johnson (D-Texas) has filed suit in federal court alleging her former boss fired her because she was black and over 40 after indicating her preference to hire a younger, Asian woman.

Elisabeth Howie worked as an executive assistant to Johnson for just over three months in early 2003. In her complaint, Howie claims she was terminated after Johnson “unlawfully discriminated against her by recruiting and hiring a person of Asian descent and under the age of 40 years as preference for not maintaining the employment of plaintiff as a black Latino of more than 40 years of age.”


In court documents, Howie describes herself as a black woman of Hispanic origin from Panama. Complicating the case is the fact that Johnson herself is a black woman.


“It’s unfortunate that the case comes in the context of one minority making a claim against another minority for employment discrimination,” said Marcus Scriven, the attorney who handled the filing of Howie’s lawsuit.


Employment-law experts not involved with the case agreed that while lawsuits alleging black-on-black discrimination — or Hispanic-on-Hispanic or Asian-on-Asian discrimination — are rare, there is nothing to prevent such claims from being upheld in the courts.


Racial discrimination can be found “even where the supervisor is of the same race as the alleged discriminate,” said Glen Nager, an employment law attorney at the law firm Jones Day.


While such cases are “highly unusual,” employment law recognizes “that you can have discrimination by members of the same group, be it on the basis of race, gender, disability or any other conceivable protected characteristic,” said Ari Wilkenfeld, a lawyer with Bernabei & Katz, a Washington firm that specializes in employment law.


Discrimination against dark-skinned blacks by light-skinned blacks “isn’t common, but there are cases on it,” Wilkenfeld added.


Howie’s suit seeks an unspecified amount of lost pay, attorney’s fees and compensatory damages. The judge handling the case, Royce Lamberth of the U.S. District Court for the District of Columbia, ordered the parties to appear for a “meet and confer” conference within the next six weeks.


Howie could not be reached for comment. House Employment Counsel Gloria Ferguson, whose office represents Johnson, said she could not comment on pending litigation. Johnson’s office likewise declined to comment.


Complicating matters further is uncertainty about the nature of Howie’s legal representation. Since Howie’s case was filed in late December 2003, Scriven has been disqualified from representing her on the grounds that he improperly spoke with Johnson’s then-chief of staff, Beverly Fields.


Fields — who is also black — contacted Scriven in December about filing a claim of her own against Johnson for discrimination and retaliation. In court papers. Fields maintains that she was demoted after she opposed Howie’s termination.


Despite affidavits by both Fields and Scriven asserting that Fields was not a party to the lawsuit and that neither discussed the particulars of Howie’s case, Lamberth determined that Scriven had violated the rules of professional conduct by meeting with Fields without prior consent from Johnson’s counsel.


Scriven said he plans to appeal Lamberth’s decision after consulting with Howie. “In no way has the strength and validity of Ms. Howie’s claim been diminished by the judge’s ruling,” he said.


At the same time, Lamberth handed Howie a victory by denying Johnson’s request to bar Fields from testifying in the case. In court documents, Fields states that she is ready to affirm all of Howie’s allegations.


A call to Johnson’s office this week revealed that Fields no longer works there, and her home phone has been disconnected. The office wouldn’t provide specifics about her departure.


The suit is being filed under the 1995 Congressional Accountability Act, which for the first time applied 11 workplace and discrimination laws to Congress. After undergoing a period of required counseling and mediation by Congress’ Office of Compliance, employees can either continue pursuing their claim through an administrative hearing within the agency or proceed to federal district court.