Hispanic agents confront racism in U.S. Customs

The federal judge hearing a class-action discrimination case filed by a group of Hispanic U.S. Customs agents has handed down a ruling that is a major victory for the agents, according to their attorney, Ron Schmidt.

Customs was seeking to have the agents’ case dismissed upfront -- on summary judgment -- before legal discovery and a trial. The judge's ruling stopped that effort in its tracks.

The class-action lawsuit, which was filed in May 2002 on behalf of some 400 active and former Hispanic special agents, alleges that Customs has engaged in a pattern of discrimination. That discrimination, the lawsuit claims, dates back to the 1970s.

In addition to back-pay and compensatory damages, the Hispanic agents are asking the court to order Customs to cease its “illegal and discriminatory conduct," the lawsuit states.

In its pleadings for summary judgment, Customs claims that the Hispanic agents failed to exhaust the administrative remedies available to them outside of federal court. Customs also argues that the agents failed to meet the legal threshold for demonstrating discrimination. “The U.S. Customs Service is proud of its diverse workforce, which includes a significant number of Customs special agents of Hispanic ancestry,” the agency asserted in a prepared statement released at the time the class-action case was filed. “The allegations of this lawsuit, that Customs has discriminated against Hispanic Customs agents, are without merit and are not supported by statistical evidence.”

(Last year, as part of the creation of the Department of Homeland Security, Customs' operations were reorganized under two DHS bureaus. Customs agents are now under the charge of DHS' Bureau of Immigration and Customs Enforcement.)

Despite Customs' efforts to short-circuit the Hispanic agents' lawsuit, James Robertson, the judge hearing the case in U.S. District Court in Washington, D.C., made clear -- in a 19-page ruling issued this week -- that the agents should have their day in court with respect to their discrimination claims.

Specifically, the Hispanic agents contend in the litigation that they were discriminated against with respect to “transfers, assignments and other career-enhancing opportunities, undercover and other undesirable work, discipline, awards and bonuses, and training....”

Customs also had asked the court to reject the agents’ claim that they were retaliated against for reporting discrimination. Judge Robertson ruled against the agency and declined to dismiss the claim.

Customs did score a partial victory in that the judge ruled the agents failed to meet the legal threshold to proceed with two claims: that the agents were improperly denied compensation for their second-language skills; and that Customs was “permeated with discriminatory intimidation, ridicule, and insult ... sufficiently severe or pervasive ... (so as to) create an abusive working environment.”

However, Schmidt says the door is not shut on those claims either, adding that the agents can ask the judge to reconsider that portion of his ruling or they can choose to address the matter through the appeals process.

The case will now proceed to the discovery phase, where attorneys will begin deposing witnesses.

The judge's ruling “is a license to open (Customs) up” and reveal the true inner workings of the agency, according to Schmidt.

“No one has ever gotten this far before with Customs,” he adds.

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