The Employer Handbook Blog

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Just another Friday here at the ole Handbook. Oh, get your head out of the gutter! This is a family blog.

(Y'all have families, right?)

For serious, today's lede isn't just gratuitous, there is an employment-law connection here.

*** searching ... searching ... searching ***

Ok, got it!

1. Back in 2012, the Iowa Supreme Court held that it's legal to fire a female employee because of her "irresistible attraction". Leave it to Staci Zaretsky at Above the Law to track down the plaintiff. She filmed a hilarious segment on Tosh.0. More from Above The Law here.


2. Take one supervisor, add in a consensual relationship (complete with texting, sexting, and you know, I don't know the exact pronunciation, but I believe its ménage à trois) gone bad, a sexual harassment complaint, and what do you have? Why a race-discrimination complaint, of course! Guh?!?!


3. And last, we have this month's edition of the Employment Law Blog Carnival: Tips for HR Spring Cleaning. Make sure to check it out. Lorene Schafer at Win-Win HR did a fantastic job with it!

School teacher, Lawrence Smizer, is a regular Facebook wordsmith:

To all my family that fought my sister tooth and nail over some BULLSHIT (And you know who you are) FUCK YOU BITCHES!!!! HE IS GOING HOME WHERE HE BELONGS!!!!! HAHAHAHAHAHAH AHAHAHAHAH AHAHAHA AHAH HAHAH HAAH

Smizer was Facebook friends with two co-workers. They dimed him out to the school and Smizer was fired. So, he sued for reverse-race discrimination.

Reverse-race discrimination, mmm-kay. How do you think it worked out for him?

Find out after the jump...

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Continue reading "Firing for *&$%-laced Facebook post is not reverse-race discrimination, you guys" »

Jagshemash.

A federal court (opinion here) has determined that a Jordanian employee nicknamed "Borat" by his co-workers can proceed to trial on his claims of race and national-origin discrimination.

Yeah, I know what you're thinking. Borat isn't from Jordan. He's from Kazakhstan (NSFW). So how can Borat the Jordanian claim discrimination?

Readers of this blog know that mistaken religious discrimination is illegal. And, in the Borat example, so is mistaken national-origin discrimination. Indeed, it can still happen even if the Jordanian employee's harassers didn't know he was from Jordan. As the court noted, it is enough for a plaintiff to show that he was treated differently because of his foreign accent, appearance or physical characteristics.

And if the harassers knew that the Jordanian employee was from Jordan? The Borat comments could still tee up a race-discrimination claim if the harassers intentionally conflated Arab and Kazakh identities. Otherwise, the teasing would make so sense.

VW may be able to get away with joking about foreign accents during the Super Bowl, but don't tolerate employees who engage in similar workplace hijinks.

Maetta Vance, the only African-American working in her department at Ball State University, claimed that she was subjected to both race discrimination and retaliation. Vance later sued and lost because she could not establish employer liability, which, in turn, depended on whether the alleged harassment was perpetrated by supervisors or coworkers. 

Employers have an affirmative defense when the supervisor harassment does not result in a tangible employment action. If, however, the harassing supervisor fires, suspends, or takes some other similar action against the victim, it's check mate. 

In instances of co-worker harassment, where tangible employment actions wouldn't be at issue (because the harassing co-worker wouldn't have that power), to prevail on a discrimination claim, the plaintiff must show, among other things, that the employer has "been negligent either in discovering or remedying the harassment."

Concluding that the harassment in the Vance case was perpetrated by coworkers, the Seventh Circuit Court of Appeals opined (here) that a Title VII "supervisor" must do more than direct and oversee the victim's daily work. Rather, the supervisor must also have the power to take formal employment actions against victim (i.e., hire, fire, demote, promote, transfer, or discipline).

Subsequently, Vance appealed and, Monday, the U.S. Supreme Court heard oral argument. You can get a copy of the transcript here. Also, be sure to check out Lyle Denniston's argument recap at SCOTUSblog here. Based on oral argument, it appears that the more conservative justices are leaning towards adopting the Seventh Circuit's approach. The liberal judges may favor a case-by-case factual analysis to determine who is a Title VII supervisor.

Meyer's prediction: Supreme Court adopts the Seventh Circuit's test.

Image credit: atom.smasher.org, licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License.

Helene Tyrrell worked as a line chef at a jockey club in Arkansas during the Winter of 2010. She claimed that immediately after she started working, and pretty much throughout her employment, the word "nigger" was bandied about like you and I would say "hello" and "goodbye." However, only once was the "n"-word hurled in her direction.

But it wasn't nigger. No, that's discriminatory.

Rather, according to the court in Tyrell v. Oaklawn Jockey Club, the "comment directed at Plaintiff and one other co-worker happened after the kitchen crew nearly mused getting breakfast out one Sunday. The comment, was according to Plaintiff, 'I told you niggas we could get this done. I told you we could do this. Y'all my niggas.'" 

And nigga, according to the State of Arkansas, is not a racist term.

So, although Ms. Tyrell claimed that the repeated use of "n"-words, whether in her presence or directed specifically at her, created a hostile work environment, the court was left scratching its proverbial head.

[T]he Court has trouble seeing how an objective person in the Plaintiff's position would have found her co-workers' jesting "extreme in nature." By all appearances, the terms was not used derogatorily at all. It might have offended Plaintiff, but viewed objectively, the language was at most course [sic] jesting.

At least one other court has noted that a plaintiff may, in certain instances, regard "nigga," as no different than "nigger." Wikipedia further notes (here) that "its use and meaning are heavily dependent on context." So, I can't help but feel that the Tyrell Court's overwhelming confidence that a jury would condone the use of the word "nigga" is misplaced, and creates a very dangerous precedent, especially when the Court conceded that the Plaintiff, herself, was offended.

If you are a supervisor, manager, in Human Resources, or otherwise in a position to address complaints of discrimination in the workplace, please do not condone the use of either "n"-word. Maybe the "victim" is not offended by its use; but, maybe he/she is. Don't second-guess it. Just make sure it doesn't happen again.

(h/t Employment Discrimination Report)

To all the haters of social-media policies:

If nothing less, the social-media policy reminds employees that if they act the fool online, it may impact their standing in the workplace, and, ultimately, cost them their jobs.

Some employees, however, are just so ignorant. Thus, I doubt that any employer policy will impact how they behave online.

Two despicable examples from this past week follow after the jump...

Continue reading "Obama's re-election evokes ugly Facebook-racism from some employees" »

Take a few minutes to read this decision. It will blow your mind.

Here's the long and short of it:

Three black employees sue for race discrimination claiming that they were subjected to a racially-hostile work environment. The court actually did the math:

During the relevant time period, Facer used the word "nigger" or "nigga" almost daily, or at least three to four times per week. Assuming that the Bratchers and Buie worked an average of forty-eight weeks a year, it would mean that Facer used the word "nigger" or "nigga" at the work site at least one-hundred forty-four times per year.

The court described these facts as presenting the "rare case where there is no dispute as to the pervasiveness of the conduct in question. No reasonable jury could find that a reasonable African-American would not be offended by this conduct." Also, the court held that the employer's anti-harassment policy was "unreasonable as a matter of law" because it required employees to report harassment to their harassing supervisor.

But here's the kicker: the court found that the plaintiffs could not establish, as a matter of law, that the comments offended them.

For serious?

In its opinion, the court identified 12 separate complaints that the plaintiffs registered, including to the owners of the company. The court also dismissed the "plaintiffs listen to rap music and rappers say 'n---a' a lot" defense. [Almost as bad as the "she was asking for it" defense]. Notwithstanding, the court considered the testimony of 3 witnesses (out of 24 total) who testified that they did not believe that the plaintiffs were subjectively offended by Facer's conduct -- you know, calling them n---er/n---a every day. That was enough to create a dispute of material facts.

So, this case will go to a jury where the plaintiffs will have to prove that they were offended by what the court itself described as a "steady barrage of opprobrious racial comments."

Unreal.

Back in 2010, Douglas Clayton had a rough Summer.

In August, Mr. Clayton was employed as a deckhand on a boat in Louisiana -- that is, until one of his white co-workers allegedly raised a wrench to Clayton and told him to get his "stupid mother f**king n**ger ass" off the boat. Mr. Clayton promptly complained to Human Resources and was transferred to another of the defendant's boats.

In September, Mr. Clayton again reported to Human Resources that his new co-workers continued to say "n**ger," among other comments, around him. Allegedly, HR responded by telling Mr. Clayton to "lighten up." Allegedly, later that day, after telling one of his co-workers to stop using the word "n**ger" on the boat, that co-worker attacked Mr. Clayton from behind.

After the physical altercation, Mr. Clayton skedaddled to another boat and called 911. While waiting for a police response, Mr. Clayton claimed that the co-worker who attacked him yelled out to Clayton, "Come out mother f**ker!"

Out of fear, Mr. Clayton jumped into the water and swam 30-40 feet to the shore.

He then sued for race discrimination, among other things. The employer moved for summary judgment, arguing that Mr. Clayton had not met his burden of establishing a tenable hostile work environment claim. The court (in this opinion), however, disagreed, underscoring that the incidents at issue were pervasive, hostile, and based on race:

Here, while there may be some incidents of hostility towards Clayton that do not deal specifically with his race, the facts provided indicate the majority of the harassment was race-based, and there is evidence that Clayton personally experienced these hostile events...Further, the insults directed towards Clayton are alleged to have occurred numerous times throughout his employment with Defendant.

The Court also questioned whether the employer had an effective mechanism in place to address allegations of race discrimination, noting that it presented no evidence of a strict-harassment policy and failed to even reprimand anyone. The alleged "lighten up" comment probably didn't much either.

Employers: When your employee has to dive into the water and swim to shore in order to avoid his tormentors -- just thinking out loud here -- consider anti-harassment training.

And settling that case.

[Editor's Note: Because "Playing the Race Card" was already taken]

The title of this post is comprised of the seven poorly-chosen words from a Vice President of Operations at a Detroit casino right before the casino terminated a white employee for allegedly botching supervision of a dealer card shuffle.

What do you think? Do we have a live race-discrimination claim? Oh yeah, we do! Details after the jump, as well as thoughts on employers who strive to maintain racial balance in the workplace...

Continue reading ""How can I keep the white girl?"" »

[If you listen carefully, you can actually hear the sound of page-hits and prurient reader interest cascading at The Employer Handbook. It's got a little funky Salt n' Pepa beat to it...]

Last May, I slobbered over blogged here about a former Indianapolis Colts' cheerleader who sued the team claiming that the Colts discriminated against her on the basis of her race (Asian) and national origin (Indonesian).

Earlier this week, the court ruled on the Colts' motion to dispose of the case. While I think we can all agree that this sort of hard-hitting blog fodder is better suited for a Monday post, I'm going to blog the heck out of the Court's decision...after the jump. (It's a long post, but it's soooooo worth it).

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Continue reading "D-I-S-M-I-S-S-E-D! Court punts Playboy-posing cheerleader's bias claims." »

What if I told you that a female black employee was called "monkey" and "nappy head Raggedy Ann" at work?

What if I then told you that the employee subsequently sued in New Jersey state court; quite possibly the most plaintiff-friendly jurisdiction in the U.S. -- next to California?

And guess what? She lost. Oh my!

What the heck happened and what can employers learn from this recent decision? Find out after the jump...

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Continue reading "Recipient of nasty racial slurs from an office friend loses bias claim" »

Yesterday, the US Equal Employment Opportunity Commission issued updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. (Title VII is the federal statute that prohibits discrimination in the workplace based on race, color, religion, sex and national origin). You can read a full press release on the updated Enforcement Guidance here.

The press release includes a link to questions and answers about the EEOC's Enforcement Guidance. However, I will summarize the most important points for employers after the jump...

Continue reading "5 takeaways from the EEOC's new guidance on use of criminal records" »

A maintenance mechanic in Illinois received 28 disciplinary-action forms from his supervisor. Ultimately, he was offered two choices: (1) accept a demotion to a non-mechanic position and take a significant pay cut; or (2) keep the position, fight the discipline, but face potential termination.

On the advice of his union representative, the mechanic took the demotion. He later sued for retaliation, claiming that the demotion, which he voluntarily accepted, was a direct response to a charge of discrimination he previously filed with the EEOC.

Is this retaliation? A federal circuit court gave us the answer yesterday. And I have it for you after the jump...

Continue reading "Even a voluntary demotion can lead to a retaliation claim" »

Unfair treatment because of one's language may be related to race or national origin discrimination. Indeed, language may be used as a covert basis for discrimination.

But that's not always so. A recent case and some helpful nuggets on English-only rules after the jump...

Continue reading "Is a workplace "English-only" rule legal? " »

Allegedly, of course.

Details after the jump...

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Continue reading "What's cookin' in celeb chef Paula Deen's kitchen? Discrimination?" »