Articles Posted in Race

Where do I find these cases, you ask? Well, I sold my soul, and a stack of Billy Ripken baseball cards, to the devil a long time ago. I ain’t telling.

But seriously, this case isn’t so much about the particular facts…

  • White employee tosses banana peels at work
  • Black employees complain of racism
  • Investigation ensues
  • White employee is forced to resign

…as it is about making sure that all involved know why an employee is being fired, and can articulate those reasons consistently. Continue reading

About a year ago, I blogged here about a dreadful Sixth Circuit opinion, in which the court concluded that the plaintiff may have a discrimination claim for receiving the specific transfer he requested (after having interviewed for the position).

Now, if you read the comments on my post, you’ll see that some of my readers took issue with my analysis of the case.

Well, I see your comments and raise you a scathing Justice Alito dissent from the United States Supreme Court’s denial of certiorari:

The decision of the Sixth Circuit in this case–holding that respondent suffered an adverse employment action when his employer transferred him to a position for which he had applied–qualifies for review under that standard. Indeed, the holding of the court below is so clearly wrong that summary reversal is warranted. The strangeness of the Court of Appeals’ holding may lead this Court to believe that the holding is unlikely to figure in future cases, but the decision, if left undisturbed, will stand as a binding precedent within the Sixth Circuit….The decision of the court below is unprecedented and clearly contrary to the statutes on which respondent’s claims are based.

#TeamAlito

You have an employee handbook, an anti-harassment policy, training, the whole nine.

But, sometimes, notwithstanding your best efforts to create a positive, respectful workplace, you receive a complaint from an employee who claims to be the victim of harassment based on [insert protected class].

All the prophylactic measures you’ve already installed mean nothing unless you respond to that complaint appropriately.

See how one company did it right, after the jump…

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paintcans.jpgThe Benjamin Moore color gallery contains, among others, Clinton Brown and Tucker Chocolate.

My virgin ears! I mean, how racist can you get?!? Or, so says Clinton Tucker, a former Benjamin Moore employee, who filed a complaint in New Jersey state court in which he alleges that these paint names are hella-racist.

According to Courthouse News Service (here), Tucker says that “being a black man named Clinton Tucker, the plaintiff found this to be extremely racially offensive.”

Incidentally, Benjamin Moore also has paint colors called Tucker Orange and Tucker Gray. However, a brief search I conducted yielded no discrimination lawsuit initiated by older or fake-baking employees.

Which brings me to the point of this post, That is, to prevail on a hostile work environment claim, an employee has to show, among other things, that a reasonable person in his shoes would be offended by the same conduct with which the plaintiff takes offense.

And since no one on the face of the earth would find the paint names Tucker Chocolate and Clinton Brown to be racially offensive, then, absent other facts to support a hostile work environment based on race, I think we have a loser claim here.

And an excuse to play Color Me Badd.

*** ducks tomato ***

nuclear-explosion-356108_640.jpg

Over the weekend, I read this opinion in a race-discrimination with facts so egregious, they’d make David Duke blush.

Let me set the scene for you. This is a workplace where, allegedly, several of the white employees displayed Confederate flag paraphernalia. I’ll spare you a verbatim review of the racial graffiti and epithets — you can view it here — but, it was pretty darn bad. And what about multiple nooses in the workplace — eight in total.

[Sidebar: I once attended a deposition of an Ivy League-educated HR Manager who testified that there was a time when she did not understand how a hangman’s noose in the workplace would offend a black employee. Hubba-what?!? Folks, just so we’re clear here, a hangman’s noose is the single worst symbol of racial hate. Period. So eight of ‘em is hella-bad!]

All that hate, but no discrimination.

There is no question that nooses, n-words, graffiti and Confederate flags are symbols of racial animus and violence. But that was not enough to convince the Eleventh Circuit Court of Appeals to reinstate several of the race-discrimination claims that the lower court had dismissed.

Dismissed?!? Why? Because many of the plaintiffs lacked firsthand knowledge of the bad stuff.

As the Eleventh Circuit Court of Appeals reasoned: “an employee alleging a hostile work environment cannot complain about conduct of which he was oblivious for the purpose of proving that his work environment was objectively hostile.”

In other words, an employee cannot rely on evidence of racial harassment of which he is not personally aware to prove that his work environment was objectively hostile. And while some of the plaintiffs were able to show that they were personally exposed to acts of race discrimination, the ones who relied on “me too” evidence about those incidents had their cases dismissed.

Employer wins.

Employer takeaway.

But, not really. Because, well, it probably spent hundreds of thousands of dollars defending these legal actions (without factoring in the cost of paying judgments). So, for the love of God, if your workplace at all resembles the allegations presented here…

Well, you’re probably not reading this blog anyway.

Thumbnail image for youarefired.jpgThe thing about this law-blogging gig, other than the money, power and women, of course, is the pride of being first to post about a crazy new case.

Last week, I missed out on the nude sunbather who sued an elementary school-employer for retaliation. Well, Jon Hyman at the Ohio Employer’s Law Blog, I see your nude sunbather and raise you two white guys and a native american who dressed as klansmen at work, allowed themselves to be photographed, and then sued for race discrimination. Boom!

Yes, this really happened.

More on this one after the jump…

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It was Gloria Steinem who, in discussing President Bill Clinton’s indiscretions with Paula Jones and Kathleen Willey, fashioned the “one free grope” rule. That is, while not condoning President Clinton’s actions, Steinem concluded that one touching is not sexual harassment — at least as a matter law.

Well, yesterday, the Fourth Circuit Court of Appeals, saw Steinem’s “one-free-grope” rule and raised her a “two-free-slurs” rule.

In Boyer-Liberto v. Fontainebleu Corp., (opinion (here), a black plaintiff alleged that her co-worker referred to her as a “porch monkey” twice in two days, from which she claimed to have been subjected to a racially hostile work environment. 

The United States Court for the District of Maryland disagreed. 

On appeal, the Fourth Circuit Court of Appeals noted that “the ‘porch monkey’ term … was indeed racially derogatory and highly offensive, and nothing we say or hold condones it.”

Now, before I discuss the Fourth Circuit’s opinion, I note that, in some states, like New Jersey for example, a single slur create a hostile work environment. And Steinem’s “one grope rule” notwithstanding, a New York court noted that a single incident — albeit a forcible kiss — could be enough to demonstrate actionable sexual harassment.

But those opinions are further up I-95. Further south, y’all, not only is a single slur hardly enough to create a hostile work environment, but, according to the Fourth Circuit, neither are two racial epithets:

“A single racist statement [is] a far cry from alleging a [hostile work] environment of crude and racist conditions so severe or pervasive….[And] “a coworker’s use of [porch monkey] twice in a period of two days … as a matter of law, [is not] so severe or pervasive as to change the terms and conditions of [a black plaintiff’s] employment so as to be legally discriminatory.”

But, look folks, as I’ve said before, even if a single incident (or two incidents) is not enough to create a winning lawsuit, it may be enough to create a lawsuit that you’ll have to spend valuable time, money, and resources defending.

So, don’t condone this behavior in your workplace — ever.

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