Opinion

Washington Post sued for race and age discrimination

Evan Gahr Investigative Journalist
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The Washington Post is being sued for age and race discrimination by a longtime black advertisement department employee who was abruptly fired and replaced with a younger white man in what the lawsuit suggests was part of a larger effort by the paper to push out older black workers.

Sounds sinister, but in the federal lawsuit, which has not been reported anywhere else, David DeJesus, 59, does not actually allege any overtly discriminatory behavior by his boss, such as racial slurs or derogatory comments based on his age.

But thanks to the expansive interpretation of civil rights laws that the Post has long encouraged on its opinion and news pages it is possible for plaintiffs to “prove” discrimination based on inference alone.

Well, well. The chickens have come home to roost on 15th Street in downtown Washington.

There is no question that DeJesus was mistreated by his employer. But is he a victim of discrimination? Or just an unhinged boss, who the lawsuit says burst into his cubicle area one day screaming about his alleged insubordination?

“The Washington Post may be the victim of a lawsuit that has no merit,” says Marc Stern, an expert on employment law at the American Jewish Committee. “He [DeJesus] may or may not have been the victim of discrimination. I have no way of knowing.”

But even though no overtly discriminatory acts were alleged, “these kind of lawsuits are an entirely legitimate way to smoke out discrimination and force an employer to think twice before they fire someone.”

Stern says that if the facts are as reported, DeJesus has probably established a “prima facie” case of discrimination because he was replaced by a younger white man. Now, the Washington Post needs to show it had a legitimate, non-discriminatory reason for firing him.

As well it should, he argues. Stern says it would be unrealistic in an age when racial slurs are no longer routine to expect everyone who alleges discrimination to have a smoking gun.

Still, the lawsuit’s claims of discrimination sound like assertions not arguments. He got fired. He’s black. They replaced him with a younger white guy. And they fired a whole bunch of older blacks. Therefore the Washington Post is racist and ageist.

Or to quote from the lawsuit, “The Post’s willful mistreatment and termination of DeJesus, a 59-year-old African-American man with an exemplary 18-year-employment record with the Post, was based in whole or in part on his age, race, skin color and/or national origin, as exhibited by [his supervisor Noelle] Wainwright’s unwarranted and demeaning treatment of DeJesus … and the Post’s termination [from 2009 to 2011] of at least 18 African-Americans over the age of 40, and at least one Caucasion female over the age of 40.”

Again, is Wainwright a bigot or just a mean boss?

Mayer Morganroth, the lawyer for DeJesus, told me that Wainwright talked in a “condescending” and demeaning manner with DeJesus that she did not manifest towards white employees. “There was no other reason for terminating him other than that he is black.”

Wainwright, who looks white in her Facebook picture, immediately hung up on me Tuesday when asked if she fired DeJesus because of his race. Was she ever disciplined for screaming at DeJesus? Or does the Post allow its white employees to shriek at black subordinates with impunity?

DeJesus was actually reinstated at the Washington Post early this year following binding arbitration required by the paper’s union contract. He now has a different supervisor but gets paid the same as before. His lawsuit seeks back pay, punitive and compensatory damages, and a jury trial.

How does DeJesus feel about the way he was treated? “I wouldn’t call it anger,” he told me. “I have mixed emotions.”

He certainly has good reason to be angry.

DeJesus started at the Post in 1993 as “a national account executive and advertising sales representative in the area of corporate and public policy advertising,” his lawsuit says.

He quickly rose through the ranks. In 1998 he “was advanced to sales management,” and in 2001 was, “transferred to the Major Accounts Unit or MAU of the financial advertising department as a national account manager in charge of major blue chip financial accounts, including Allstate, Bank of America and Charles Schwab.”

He amassed a bunch of awards “for his sales performance, achievements and for meeting and/or exceeding sales goals.”

The lawsuit says that on July 23, 2011, DeJesus’s manager of three years, Noelle Wainwright, “burst into DeJesus’s cubicle area and began shouting at him in an inflammatory and demeaning manner, accusing DeJesus of disobeying her instructions with respect to an advertisement recall study (RAM study).”

The next day Wainwright told DeJesus that he was “no longer a good fit for the company,” and asked him to resign, the lawsuit says.

He refused. Eleven days later Wainwright fired him, “without any prior progressive discipline as outlined by the Collective Bargaining Agreement” between Post management and employees, “but rather for supposed ‘willful neglect of duty and insubordination’ stemming from DeJesus’ order of a RAM study for a client purportedly ‘without proper authorization’ and his supposed failure to follow Wainright’s ‘specific instructions’ with respect to delivery to the client of the RAM study results.”

DeJesus was replaced with a “Caucasion male under the age of 30 who, upon information and belief, cost less for the Post and also earned much less revenue for the Post.”

In October 2012, the Newspaper Guild submitted the case to binding arbitration as guaranteed by its contract. This February, the arbitrator ruled that the allegation of insubordination was baseless and that he acted in accordance with her instructions. He also said the Post failed to show there was any legitimate reason to fire DeJesus.

He was ordered resubmitted with back pay, although the Post has yet to pay him the money.

DeJesus sued the Post in Washington federal district court on July 18, 2013. The lawsuit says the Post violated the 1964 Civil Rights Act, the Reconstruction Civil Rights Act, and the 1967 Age Discrimination in Employment Act.

In legal papers, the Post essentially says we didn’t call this guy an uppity black and even if we did, we had a right to fire him because he is uppity.

“Some or all of Plaintiff’s purported claims are barred because, even if the Post were found to have considered any impermissible factors in any decisions or actions with respect to Plaintiff, which the Post denies, no such decisions were motivated by impermissible factors and the Post would have taken the same action regardless of any impermissible factors.”

This is a standard defense from employers accused of discrimination. But it probably would not get much sympathy from the Washington Post editorial writers or reporters if offered by another prominent organization accused of discrimination.

Morganroth, the lawyer for DeJesus, says the Washington Post has not tried to settle the case and discovery will begin later this month.

Is Morganroth, an occasional Post reader, surprised that a liberal organization would behave this way? “Discrimination can come from any source. There are liberals who are discriminatory too,” he says.

True enough, but you would never know that from reading the Washington Post.

Evan Gahr, an editorial writer and press critic for the late New York Post Editorial Page Editor Eric Breindel, has also written about the media for the Wall Street Journal, the American Spectator and National Review.