HIGH COURT LETS STAND BIAS RULING

JON SPRINGER

WASHINGTON -- The U.S. Supreme Court here last week refused to hear an appeal of a $300,000 racial discrimination decision against Wal-Mart Stores, Bentonville, Ark.

Wal-Mart was ordered to pay the sum to Benjamin Guiliani, a Mexican-American man who said he was racially harassed as he worked cleaning parking lots at a Wal-Mart store in Augusta, Maine, in 1994.

Wal-Mart's lawyers appealed the award on the basis that as an independent contractor Guiliani did not have the same right as employees to collect damages over a hostile work environment.

Guiliani sued under an 1866 civil rights law that was amended by Congress in 1991, allowing employees to sue their employers over racial harassment on the job. Concerned the decision could lead to potential liability issues with hundreds of other contracted employees, Wal-Mart appealed the case to the Supreme Court, which, without comment, elected not to hear the case.

"We're clearly disappointed the court let the ruling stand," Tom Williams, a spokesman for Wal-Mart, told SN. "We believe we raised a very important issue, and one that could clearly arise again considering the widespread use of independent contractors."

In his decision to reject Wal-Mart's appeal in 1998, U.S. District Judge Morton A. Brody noted that Wal-Mart painted "a vivid picture of liability run amok," if a company is made responsible not only to protect its own employees against racial harassment in the workplace but also to protect all the contractors the company may deal with. But he noted the civil rights law as amended in 1991 was not intended to exclude independent contractors from making hostile work environment claims. "The problems if any are for Congress to fix," he wrote.

Karen Wolf, a Portland, Maine-based attorney for Friedman Babcock & Gaythwaite, which represented Guiliani and his company, Danco, called Wal-Mart's objection a "red herring."

"Every civil-rights claim brought about by anyone has to pass a number of hurdles, first to get the case to a jury, and then to have a jury come to a decision," Wolf said. "Whether [Guiliani] was an independent contractor or a paid employee doesn't and shouldn't matter."

According to court documents, Guiliani was hired in 1994 to remove litter from a Wal-Mart parking lot. He said he endured several incidents of harassment from store employees before his contract was terminated in 1995. He brought suit two years later.