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David C. Garner
David C. Garner, Attorney
Category: Legal
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Experience:  JD with Distinction, Admitted to practice in California
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my wife (an Asian woman) works for a school cafeteria. A couple

Resolved Question:

my wife (an Asian woman) works for a school cafeteria. A couple of weeks ago, her manager requested to search her bag and there were some small school properties (trash bags, paper towels, etc.) There is no doubts what my wife did was wrong. My question are
1. does the manager have the right to search her bag?
2. do you think that is a kind of racial discrimination since the manager did not search the other ladies' bags?
Now she got suspended (with pay) and we are not sure what is going to happen. Could you please kindly provide us some legal advices? We are really appreciated. Thank you so much!
Submitted: 3 years ago.
Category: Legal
Expert:  David C. Garner replied 3 years ago.

Hello,

 

Based on the facts that you offered, whether or not the manager had the right to search her bag is irrelevant. He apparently asked if he could search her bag and she consented. A consent search (where the person agrees to it) is always permissible.

 

The mere fact that your wife is an asian does not afford her protection. If what you are saying is that she is the only asian, it still does not help. Again, you did not offer much to work with, but for some reason suspicion fell on your wife. They asked to search and she consented. That is not discrimination and the managers do not need to then go and search everyone else. Clearly they had the right person.

 

I hope this helps.

 

DCG

Customer: replied 3 years ago.
It is known that everyone takes some little things from the kitchen. But the manager picked her. Do you still think that is NOT some kind of racial discrimination?
Expert:  David C. Garner replied 3 years ago.

Hello,

 

Its hard to say and the burden of proof would rest with you. Perhaps they decided to tighten up the rules. Perhaps this is the only one they were aware of. It's a difficult argument to make that "everyone is stealing so I stole too and the only reason they did anything to me is based on discrimination."

 

To avail herself of the courthouse you wife must come there with clean hands. I don't think a defense such as I outlined above would be availing.

 

DCG

Customer: replied 3 years ago.

That is not the answer that we are waiting for, but we will accept it. Thanks for your advice.

Expert:  David C. Garner replied 3 years ago.

Hello,

 

I wish I had a better one. If you could show a pattern of discrimination it would be one thing, but I still think you would have a hard time overcoming the consent aspect of the search, coupled with the fact you wife was swiping things. These are delicate, fact based analyses, but if "everyone knows everyone was stealing" and management wants to clean that up, they have to start somewhere. That by itself is not proof of discrimination.

 

Best of luck to you.

 

DCG

David C. Garner, Attorney
Category: Legal
Satisfied Customers: 832
Experience: JD with Distinction, Admitted to practice in California
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