464 Lucas Ave.

, Suite 201 • Los Angeles, California 90017 • (213) 481-8530 • FAX (213) 481-0352

November 23, 2021

Via Email: patricia.miner@eeoc.gov

Equal Employment Opportunity Commission

Phoenix District Office
3300 North Central Avenue
Suite 690
Phoenix, AZ 85012-2504
United States

Re: Request for Systemic Discrimination Inquiry at HMS Host at Sky Harbor

Ms. Miner:

We write on behalf of UNITE HERE Local 11 to formally request that the Equal
Employment Opportunity Commission (“EEOC”) issue a Commissioner Charge
regarding HMS Host (Host International, Inc.).1 Our union represents HMS Host
concessions workers at Sky Harbor International Airport. As described below, data
obtained from HMS Host indicate substantial disparities in hiring, promotion, and
compensation along racial and ethnic lines. We are also concerned that management has
adopted a biased “tap-on-the-shoulder” approach to promotion, despite official policies to
the contrary.

Below, we outline, in detail, grounds for the EEOC to investigate and issue a
Commissioner Charge concerning HMS Host’s pay and promotion practices.

Factual Allegations

1. HMS Host has paid workers of color substantially less overall than white
workers.

During 2019—the most recent full fiscal year prior to the disruptions caused by the
COVID-19 pandemic—HMS Host paid substantially more in compensation to white
workers than to other racial/ethnic groups. The following figures reflect total earnings—
including both hourly wages and tips—over the course of the fiscal year for all
employees for whom we have received race/ethnicity and compensation data from the
company (which excludes workers in management).

1
See 29 C.F.R § 1601.6 (stating that “[a]ny person or organization may request the issuance of a
Commissioner charge for an inquiry into individual or systematic discrimination. Such request, with any
pertinent information, should be submitted to the nearest District, Field, Area, or Local office”).
 1. FY 2019 Pay Disparities

- During FY 2019, Black/African American workers were paid, on average, 67% of

the total annual earnings of white workers, taking home $9,539.49 less than white
workers. On an average hourly basis, Black/African American workers were paid
69.7% of the compensation paid to white workers.2

- Latinx workers were paid, on average, 78% of the total annual earnings of white
workers, taking home $6,343.25 less than white workers. On an average hourly
basis, Latinx workers were paid 81.9% of the compensation paid to white
workers.

- American Indian workers were paid, on average, 63% of the total annual
earnings of white workers, taking home $10,684.99 less than white workers. On
an average hourly basis, American Indian workers were paid 65.7% of the
compensation paid to white workers.

- Asian workers were paid, on average, 91% of the total annual earnings of white
workers, taking home $2,432.04 less than white workers. On an average hourly
basis, Asian workers were paid 99.5% of the compensation paid to white workers.

The underlying FY 2019 figures for each group, along with data on total hours
worked, are presented in the following chart:

HMS Host Worker Compensation During Fiscal Year 2019

Percentage of
Average Total Earnings Average Hours Average Percentage
Race/Ethnicity Annual Total as Compared to Worked Earnings Per Hourly
of Earnings White Workers Annually Hour Worked Earnings as
HMS Host (Wages and (Wages and (Including (Including Compared to
Employees Tips) Tips) Overtime) Overtime) White Workers
White $28,513.46 100% 1287.10 $22.15 100%
Asian $26,081.42 91% 1183.44 $22.04 99.5%
Native
Hawaiian/Oth
Pac Island $24,357.01 85% 1738.08 $14.01 63.3%
Hispanic/Latinx $22,170.21 78% 1222.69 $18.13 81.9%
Black/African
American $18,973.97 67% 1229.97 $15.43 69.7%
American
Indian/Alaska
Native $17,828.47 63% 1225.30 $14.55 65.7%

2
The average hourly wage figures presented here include hourly compensation and gratuities for both
straight time and overtime.

2
 2. FY 2020 Pay Disparities

Earnings for workers and employment levels were significantly reduced overall
during fiscal year 2020 because of COVID-19’s impact on air travel and employment.
Nonetheless, disparities between workers of color and white workers grew during this
period. During fiscal year 2020:

- Black/African American workers were paid, on average, 76% of the total annual
earnings of white workers, taking home $3,941.51 less than white workers.
However, on an average hourly basis, Black/African American workers were paid
only 64.8% of the compensation paid to white workers, a lower percentage than
during prior year.

- Latinx workers were paid, on average, 91% of the total annual earnings of white
workers, taking home $1,528.01 less than white workers. On an average hourly
basis, however, Latinx workers were paid only 75.5% of the compensation paid to
white workers.

Additional data for FY 2020 are presented in the chart below:

HMS Host Worker Compensation During Fiscal Year 2020

Percentage of
Average Total Earnings Average Hours Average Percentage
Race/Ethnicity Annual Total as Compared to Worked Earnings Per Hourly
of Earnings White Workers Annually Hour Worked Earnings as
HMS Host (Wages and (Wages and (Including (Including Compared to
Employees Tips) Tips) Overtime) Overtime) White Workers
White $16,215.63 100% 576.03 $28.15 100%
Asian $19,541.15 120% 819.37 $23.85 84.6%
Hispanic/Latinx $14,687.62 91% 691.60 $21.24 75.4%
Black/African
American $12,274.12 76% 672.62 $18.25 64.8%
American
Indian/Alaska
Native $10,966.67 68% 644.60 $17.01 60.4%
Native
Hawaiian/Oth
Pac Island $5,254.61 54% 346.26 $15.18 53.9%

The data presented above do not cover management positions, as we do not have
compensation data for those roles. However, based on the racial make-up of
management as described below and the likelihood that management positions provide,
on average, higher compensation than non-management positions, we expect that
disparities would be greater had management positions been included in the analysis.

3
 2. Racial earnings gaps cannot be explained solely by differences in working
hours or years of service.

The number of hours that workers have worked each year cannot explain the racial
disparities in earnings. First, the disparate access to work opportunities can itself be a
form of unlawful discrimination—in other words, the consequence, rather than the cause,
of disparate outcomes. See, e.g., Burlington Indus. v. Ellerth, 524 U.S. 742, 760-61
(1998) (conduct prohibited by Title VII may include tangible employment actions such as
hiring, failing to promote, and assigning employees positions with significantly different
responsibilities).

Second, the degree of disparities between racial/ethnic groups far exceeds the
disparities in their hours worked. During 2019, Black/African American employees
worked on average 96% of the number of hours that white workers worked (including
straight time and overtime) but were paid on average only 67% of the compensation
(wages and tips) that white workers received. Likewise, during 2019, Latinx workers
worked on average 95% of the hours worked by white workers but were paid only 67%
of the compensation white workers received. During 2020, Black/African American
workers and Latinx workers continued to earn significantly less overall than white
workers even though both groups worked on average more hours than white workers.3

Nor can disparities be explained away as resulting simply from differences in years of
service. First, again, a group’s relatively greater average seniority may itself result from
prior discrimination in hiring, giving one group more time to accrue raises. Second, our
review of the data thus far indicates that there are no significant differences by
racial/ethnic group in terms of each group’s overall average length of service. For 2019,
Black/African American workers had worked on average 4.52 years and Latinx workers
had worked on average 4.68 years—both within 2% of the average for white workers of
4.61 years.4

3. The racial disparities appear to be driven largely by the disparate

representation of white workers in better paid positions.

1. Latinx and Black/African American workers are vastly underrepresented

within the highest paid non-management positions

Among non-management employees, the sharp disparities in compensation along

racial lines appear to result from the disproportionate representation of white workers in
better-paid positions, and the disproportionate representation of workers of color in less
well-paid positions.

3
Disparities in annual earnings did not differ significantly from differences in average hourly earnings.
4
An outlier on this factor was American Indian workers, a much smaller set of employees, who worked on
average only 1.16 years.

4
 White workers are dramatically overrepresented within the company’s best-paying
roles. Bartenders and servers are among the best-paid non-management positions
because these workers receive tips on top of their base pay. In 2021, white workers make
up approximately 32% of the workforce for whom we have received race/ethnicity and
compensation data from the company, but 40% of white workers are bartenders or
servers. By contrast, Black/African American workers comprise around 25% of HMS
Host’s non-management workforce but only 4% of Black/African American workers hold
tipped bartender/server positions. In total, white workers are nearly 10 times more likely
to be in the better-paid tipped bartender/server positions than Black/African American
workers.5

Conversely, workers of color are concentrated within the lowest-paid positions.

Black/African American workers are 3.3 times more likely than white workers to work in
the Utility department, which has a starting hourly wage of $12.90. And Latinx workers
are almost twice as likely as white workers to be employed as baristas, another untipped
position that pays a starting hourly wage of $13.40.

2. Latinx and Black/African American workers are underrepresented in

management positions relative to HMS Host’s workforce

There also appear to be significant disparities between the racial make-up of

management versus non-management positions. While we do not have race/ethnicity
data from the company for management positions, we have assembled the following
estimates based on workers’ perceptions of the race/ethnicity of managers and
supervisors:

Of 15 top level of management positions (including unit and multi-unit General

Managers) for whom workers reported a perceived race/ethnicity:

- 12 (80%) are white

- 2 (13%) are Latinx
- 1 (7%) is Black/African American
- 0 are Asian/Pacific Islander
- 0 are American Indian/Native American

5
Published EEO data for the food service industry does not differentiate between non-management food
preparation and serving workers. But white workers are overrepresented in tipped bartender/serving
positions as compared to the distribution of white workers within the regional labor market. Within the
Phoenix-Mesa-Scottsdale area, white workers outnumber Latinx workers by a factor of 2. But white
employees are 3x more likely than Latinx workers to serve as servers and bartenders at HMS Host. The
distribution of white employees in higher-paid roles exceeds the expected rate by half, which, as discussed
below, merits an inquiry into the disparity. See EEO-ALL01R - Occupation by Sex and Race/Ethnicity for
Residence Geography, Phoenix-Mesa-Scottsdale, AZ Metro Area (2014-2018), available at
https://www.census.gov/acs/www/data/eeo-data/eeo-tables-
2018/tableview.php?geotype=msa&msa=31000us38060&filetype=all1r&geoName=Phoenix-Mesa-
Scottsdale,%20AZ%20Metro%20Area.

5
 Of all 66 HMS managers or supervisors (including those above) for whom workers
reported a perceived race/ethnicity:

- 42 (64%) are white

- 11 (17%) are Latinx
- 7 (11%) are Black/African American
- 3 (5%) are Asian/Pacific Islander
- 3 (5%) are American Indian/Native American

The high representation of white persons in management positions contrasts with the
racial make-up of the company’s non-management workforce. The following are figures
from 2020 (the proportions appear to be consistent over time) for employees for whom
we have race/ethnicity data from the company:

- 187 (33%) are white

- 181 (32%) are Latinx
- 127 (23%) are Black/African American
- 39 (7%) are American Indian/Native American
- 23 (4%) are Asian/Pacific Islander

These figures indicate that white persons are significantly more likely than persons of
color to be employed in management positions. Based on the above information,
although white non-management workers outnumber Black/African American non-
management workers by a ratio of only about 3 to 2, white senior managers outnumber
black senior managers by a margin of 12 to 1, and white managers outnumber
Black/African American managers overall by a margin of 6 to 1. Likewise, although
there are nearly the same number of white and Latinx non-management workers, white
senior managers outnumber Latinx senior managers by margin of 6 to 1 and white
managers outnumber Latinx managers overall by a margin of nearly 4 to 1.

3. Latinx managers are under-represented relative to the relevant labor

market

A comparison of HMS Host’s management to the regional labor market further

indicates that Latinx workers, in particular, are systematically underrepresented within
company leadership. See Hazelwood School Dist. v. U.S., 433 U.S. 299, 308 (1977)
(directing courts to measure employers against the racial and ethnic composition of the
qualified population in the community from which employees are hired). Because HMS
Host operates out of Sky Harbor International Airport, the Phoenix-Mesa-Scottsdale
labor market serves as the appropriate comparator region. Managers at HMS Host
primarily supervise food preparation and serving workers; therefore, the qualified labor
market is comprised of individuals who perform these jobs within the Phoenix metro
area.

6
 The latest EEO data for supervisors of food preparation and serving workers in
the Phoenix-Mesa-Scottsdale labor market is presented below:6

Balance
Black/ American
of not
Total All Hispanic White African- Indian Asian
Hispanic
Groups or Latinx Alone American /Alaska alone
or
alone Native
Latinx
Total 15,455 5,710 6,985 680 350 1,210 520
Percent
100% 36.9% 45.2% 4.4% 2.3% 7.8% 3.4%
Total

The composition of HMS Host management noticeably diverges from the distribution
of workers employed in these positions in the Phoenix area. The most recent EEO data
indicate that Latinx workers make up 29.1% of the labor force for the Phoenix-Mesa-
Scottsdale metro area, and white workers constitute 57.4% of workers. The same data
reveal that, among supervisors of food preparation and serving workers in the region,
36.9% identify as Latinx and 45.2% identify as white. But at HMS Host, Latinx workers
comprise only 17% of the managers at the company’s Sky Harbor units. When this
figure is compared against the regional food supervisor figures, Latinx workers are less
than half as likely to be supervisors at Host than in the local labor market. These gross
deviations from the regional data—when combined with anecdotal evidence of potential
bias—supply further cause to investigate HMS Host’s hiring and promotion practices.

4. Workers have reported some indications of a “tap-on-the-shoulder”

approach to promotions.

Employees have also recounted instances of what they perceive as a “tap-on-the-

shoulder” approach to promotions at Sky Harbor. Several white or light skinned
employees have described being approached by managers at HMS Host and being
encouraged to apply for promotions. One white male employee stated that each of his
promotions or transfers to positions that were more desirable or held greater
responsibility were initiated by managers in what he described as a “tap-on-the-shoulder”
style in which the decision seemed to be made by management before he was
interviewed. Another white male employee hired as a host reported that he was
approached by management beginning during his first week of work and told that he
would make a good server, bartender, or manager.

On the other hand, we have heard complaints from workers of color who desired
advancement but report they were not given the same degree of attention and access to
information. For example, Scott Mattos Elliott, a mixed-race Puerto Rican and Native
American employee, filed a complaint with the Phoenix Equal Opportunity Department

6
These figures can be found at the following URL: https://www.census.gov/acs/www/data/eeo-data/eeo-
tables-2018/tableview.php?geotype=msa&msa=31000us38060&filetype=all1r&geoName=Phoenix-Mesa-
Scottsdale,%20AZ%20Metro%20Area.

7
(“EOD”) this July alleging, among other things, that despite having trained other
employees, he was not approached about becoming a certified trainer, a change that
comes with a $0.50 an hour pay increase. He was certified only after filing the
complaint.

In another case, Tyshaun Tatuman, an African-American male employee initially

hired as a utility worker (primarily washing dishes) has alleged that he was repeatedly
blocked from promotion to a front-of-the-house host position, despite having served as a
host when the restaurant was short-staffed. When Mr. Tatuman expressed interest in
promotion, his manager allegedly implied that he only went to the front of the house to
flirt with the female hosts and encouraged him to move into a back-of-the-house cook
position instead. Later, Mr. Tatuman was allegedly informed that he would be promoted
to host once the restaurant found his replacement.7 He recruited a replacement (who quit
shortly thereafter following allegedly poor treatment by management) but was not
promoted. Management subsequently advertised the host position online and hired a
person outside of the unit for the role instead of offering the position to Mr. Tatuman. He
was only promoted after the Union filed a grievance on his behalf.

The same employee and another African-American male employee have also
complained to us that they had been referred to as “boy” by a manager and by another
white male employee.

Similarly, Obed Cardin, a Latino employee who works as a bar steward in the
American Airlines lounge, reports that he was passed over for a bartending position at
Blanco Tacos and Tequila in favor of a white employee. Mr. Cardin reports that he was
given a perfunctory interview for a floating bartender position and was told by
management that the role could be allotted as few as two shifts per month. Mr. Cardin
felt that this information was delivered in a manner that was designed to dissuade him
from accepting the job, and he declined the position. (Mr. Cardin would have accepted
the position had it included one or two shifts per week). The manager who allegedly
dissuaded Mr. Cardin subsequently permitted a white host (who was also the son of a
bartender in the unit) to move into a part-time bartending role. This employee has worked
more than thirteen shifts classified as a bartender and has also persuaded management to
hire his friend as a new host and part-time bartender. Mr. Cardin was not reapproached
after it became clear that more shifts were available.

Workers have also described additional instances where managers at HMS Host
appear to have diverged from official policy in order to advance favored employees. Per
the terms of the Collective Bargaining Agreement (“CBA”), job vacancies are awarded to
the senior qualified employee within the store (“unit”) and then are opened to other

7
This condition of promotion (which is notably absent from the Collective Bargaining Agreement between
management and the Union) also raises disparate impact concerns. Because workers of color are
disproportionately concentrated in lower-paying and high-turnover positions at HMS Host, it is more
difficult for employees and managers to recruit and retain their replacements. We are currently
investigating whether this requirement is a company-wide policy. But at a minimum, it serves as further
evidence of how unchecked discretion among lower-level supervisors could impair advancement
opportunities for workers of color.

8
employees within that classification. Subsequent openings must be filled from within the
unit before being posted on an open job list, which is maintained outside of the Human
Resources office in Terminal 3.8 But recently, at LaGrande Orange, a general manager
allegedly hired a new white bartender before offering shifts to current part-time workers
with seniority. Similarly, a Black/African American employee who has worked with the
company for six years has alleged that management at Blanco opted to promote a lighter-
skinned host into management, even though this host had less seniority. This employee
has also reported that, instead of promoting senior employees of color into management
roles, Cowboy Ciao has recruited white managers from outside of the company.
Similarly, we understand HMS Host opted to hire a white woman with no prior
experience as a Starbucks manager instead of promoting a current employee.

5. Host managers have displayed, at best, a lack of sensitivity to issues of racial

equity.

Management has also acted against employees that express support for racial justice.
During April 2021, HMS Host management at Sky Harbor prohibited workers from
wearing Black Lives Matter (“BLM”) masks. UNITE HERE Local 11 filed an unfair
labor practice charge with the National Labor Relations Board in June 2021 alleging that
Host management separately directed two Starbucks baristas employed by the company,
Scott Matos-Elliott and Victoria Stahl, to remove masks bearing the words “Black Lives
Matter” or “BLM,” stating that the masks’ political messaging violated company policy.
Matos-Elliott and Stahl had decided to wear the masks as part of an effort to advance
racial equity at the company. The company told Ms. Stahl that it had banned BLM masks
to placate customers; earlier, a customer in Terminal 3 had become very angry upon
seeing a barista wearing a BLM mask and had screamed at the worker.

A regional office of the NLRB conducted an investigation and found evidence to

support the Union’s charge that the company violated workers’ federal labor rights.
Avoiding a trial, Host agreed to resolve the complaint through a settlement agreement
with the agency requiring that it pledge to employees that it will not “tell [them] to
remove masks that have Black Lives Matter or BLM printed on them” or otherwise
violate workers’ federal labor rights. See NLRB Case No. 28-CA-276978. The charge
was among first cases in the nation to take on the question of whether workers have a
right under federal labor law to wear BLM masks.

8
Article 10.5 of the Collective Bargaining Agreement between HMS Host and the Union provides that:

Permanent job vacancies, including jobs in new or remodeled units [defined as a store], shall be
open for a period of five (5) days, and shall be awarded to the senior qualified Employee within
the unit first and then open to employees outside the unit within the classification for those who
submits a bid. Any subsequent openings resulting from the job bidding process shall be filled
from within the unit prior to being posted on the open job requisition list. […] It shall be the
responsibility of the employee to submit his or her bid directly to the HR office on a form
provided by the company.

9
 Analysis

1. The evidence supports a potential claim for disparate treatment

To show pattern or practice of disparate treatment, a plaintiff must "carry the initial
burden of offering evidence adequate to create an inference that" employment decisions
were "based on a discriminatory criterion illegal under the Act." International Broth.
Teamsters v. U.S., 431 U.S. 324, 358 (1977). “Where gross statistical disparities can be
shown, they alone may in a proper case constitute prima facie proof.” Hazelwood School
Dist., 433 U.S. at 307–308 (citing Teamsters, 431 U.S. at 339). See also Stender v. Lucky
Stores, 803 F.Supp. 259, 319 (N.D. Cal. 1992) (observing that “[p]roof of discriminatory
intent may be direct, circumstantial, or may be inferred from statistical evidence”).

Gross statistical disparities in earnings, hiring, and promotion at HMS Host merit an
EEOC investigation into the possibility of disparate treatment. As described above, white
workers are overrepresented within the ranks of management and the higher-paid non-
management roles. Almost two-thirds of the managers at HMS Host are white, but
among similar firms in the region, workers of color fill the majority of food service
supervisor roles. And although white workers make up only one-third of the non-
management workforce at HMS Host, 40% of white workers hold the better-paid tipped
bartender/server positions. By comparison, Black/African American workers make up
around 25% of the non-management workforce but only 4% of Black/African American
employees hold bartender/server jobs.

The overrepresentation of white workers in better-paid positions in turn produces

large differentials in compensation: in FY 2019, for example, Black/African-American
non-management workers received 69.7% of what white workers earned per hour, which
resulted in $9,539.49 less in pay overall. Latinx non-management employees were only
paid, on average, 81.9% of the total hourly earnings of white workers and took home
$6,343.25 less in pay overall. These disparities continued in FY 2020, where
Black/African-American workers received 64.8% of what white workers earned per hour
and Latinx workers received 75.4% of what white workers earned per hour.

These differences cannot be easily explained by a lack of qualifications or a lack of

interest among workers of color. The food service management and bartending/serving
positions at HMS Host entail the sorts of skills that “many persons possess or can fairly
readily acquire.” Hazelwood School Dist., 433 U.S. at 308 n.13 (observing that general
labor market statistics may prove probative in these instances).9 But even so, two
employees of color have alleged that having performed the duties of the position they
sought and expressing interest in promotion, they were not considered for higher-paid
positions until they took formal action to complain to the City of Phoenix’s Equal
Opportunity Department and/or presented their cases during a collective bargaining

9
Compare Ward’s Cove Packing Co. v. Atonio, 490 U.S. 642, 651 (1989) (stating that liability will not
obtain where “the absence of minorities holding such skilled positions is due to a dearth of qualified
nonwhite applicants (for reasons that are not petitioners' fault)”).

10
negotiation. And despite the seniority policies enshrined in the CBA, workers of color
have also reported instances where they were allegedly passed over for promotion in
favor of more junior light-skinned employees.10

Management’s favoritism toward light-skinned employees has occurred against a

background of insensitivity to racial justice. Notably, when workers attempted to call for
racial equity in the workplace by wearing “Black Lives Matter” masks, management
expressly prohibited them from doing so—even as workers were allowed to wear masks
bearing other messages—out of apparent concern that they would alienate customers with
discriminatory attitudes. Two Black/African-American employees reported that they
were referred to as “boy” by a manager and a white co-worker.

As reviewed above, workers have also described incidents where managers

allegedly deviated from policy or misrepresented the availability of higher-paid positions
in ways that benefited favored light-skinned workers. And when coupled with evidence
of statistical disparities and management’s insensitivity to issues of racial justice, this
testimony raises concerns that HMS Host operates through a biased “tap-on-the-
shoulder” system and plainly merits further investigation.

2. The evidence also supports a potential claim for disparate impact

Should the EEOC determine, after investigation, that the disparities described above
are insufficient to support an inference of intentional discrimination, the agency may also
proceed under a disparate impact theory. To establish a prima facie case of disparate
impact under Title VII, a plaintiff is ordinarily required to isolate and identify the specific
employment practice that is allegedly responsible for statistical disparities. 42 U.S.C. §
2000e-2(k)(1)(A)(i). However, a decision-making process may also be analyzed as one
employment practice “if the complaining party can demonstrate that the elements … are
incapable of separation for analysis.” Id. § (k)(1)(B)(ii).

Courts have not required plaintiffs to isolate specific aspects of employers’

promotional systems when the company relies upon subjective criteria, lacks uniform
standards, and fails to draft written policies or justifications for promotional decisions.
See Stender v. Lucky Stores Inc., 803 F.Supp. at 335 (citing Allen v. Seidman, 881 F.2d
375, 381 (7th Cir. 1989)).11 Employers have also been held liable for disparate impacts

10
These allegations would be sufficient to establish a prima facie case of individual disparate treatment.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (stating that a plaintiff must show that
(1) he belongs to a statutorily protected class, (2) he applied for and was qualified for an available position,
(3) he was rejected despite his qualifications, and (4) after the rejection, the position remained available and
the employer continued to review applicants possessing comparable qualifications). “The burden of
establishing a prima facie case of disparate treatment is not onerous.” Texas Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981).
11
Compare Stout v. Potter, 276 F.3d 1118, 1124 (9th Cir. 2002) (stating that a promotion process that
included screening panels, supervisor evaluations, validated competences, and meetings to compare
evaluations could be analyzed as several discrete elements).

11
arising from a policy of “leaving initial placement, promotion and training decisions to
the sole discretion of lower-level supervisors whose conscious and subconscious
prejudices are unchecked by objective and publicized decision making criteria.” Id.12

HMS Host appears to rely significantly upon a system of subjective decision-making.

As described by workers, promotions are apparently determined by managers within each
store unit, unchecked by objective criteria. Several white and light-skinned employees
report that they have been approached and groomed for advancement soon after hire and
without an expression of interest on their part. But when qualified workers of color have
sought promotion through the channels prescribed by the CBA, they allege that they have
faced delays and the imposition of additional informal requirements. Employees further
describe instances where managers diverged from the official processes outlined in the
CBA and brought on white employees. These experiences indicate that the company’s
promotion policy is characterized by informality and cannot be readily separated into
different elements.

When HMS Host’s selection and promotion methods are analyzed as one
employment practice, strong disparities emerge. As described above, there are large
differences in representation among management and the higher-paid bargaining unit
positions, and these discrepancies cannot be readily explained through reference to the
relevant labor market or a lack of qualifications among lower-level employees of color.
Further investigation is needed concerning the root cause of these inequalities.

Conclusion

For the reasons outlined above, we request that the EEOC initiate a systemic
investigation into the pay, hiring, and promotion practices of HMS Host at Sky Harbor,
including questions of legal compliance and best practices. We are continuing to
investigate these issues and are prepared to assist the EEOC in this process by making
workers available to speak with the agency’s investigators. Please do not hesitate to
reach UNITE HERE Local 11 General Counsel Jeremy Blasi by phone at 202.251.0048
or by email at jblasi@unitehere11.org. We look forward to hearing from you.

Sincerely,

/s/

Jeremy Blasi, General Counsel

UNITE HERE Local 11

12
This principle is not disturbed by Wal-Mart Stores v. Dukes, which discussed the standard for class
certification. 564 U.S. 338, 355 (2011). There, the Supreme Court reiterated that “in appropriate cases …
giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact
theory—since “an employer's undisciplined system of subjective decisionmaking [can have] precisely the
same effects as a system pervaded by impermissible intentional discrimination.” Id. (internal punctuation
omitted).

12
/s/

Alyssa Peterson, Staff Attorney

UNITE HERE Local 11

/s/

Kennedy Willis, Law Clerk

UNITE HERE Local 11

13