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September 12, 2014

How swift response to racial slurs and graffiti defused a discrimination claim

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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Continue reading "How swift response to racial slurs and graffiti defused a discrimination claim" »

August 4, 2014

Inappropriate Facebook videos, comments doom an employee's discrimination claims

On the clock or off, when employees do dumb stuff on Facebook, it could cost them their jobs. And, apparently, their discrimination claims against their former employer too.

Yep, another employee screwed up online. Go figure.

More on that after the jump...

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Continue reading "Inappropriate Facebook videos, comments doom an employee's discrimination claims" »

June 30, 2014

Black man claims a paint company's paint is racist and he was fired for complaining

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 ***

June 24, 2014

Nooses, n-words, and confederate flags, but no discrimination #shrm14

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.

May 20, 2014

Three employees fired for posing at work in KKK garb and makeshift crosses claim discrimination. Yep.

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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Continue reading "Three employees fired for posing at work in KKK garb and makeshift crosses claim discrimination. Yep." »

May 14, 2014

You've heard of the "one-free-grope" rule. How about the "two-free-slurs" rule?

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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March 4, 2014

The National Football League's proposed "N"-word penalty: too far, or not far enough?

nfl.jpgIn a few weeks, the National Football League owners are going to consider a proposed rule governing the use of the "N"-word during a football game. If the rule goes into effect, any team with a player who uses the "N"-word during a game, will be assessed a 15-yard penalty.

Players, young and old, disagree on the rule.

Here are Michael Wilbon and Jason Whitlock from ESPN's Outside the Lines debating the merits of the proposed new rule.

In yesterday's edition of The MMQB on CNNSI, Seattle Seahawks cornerback Richard Sherman told sportswriter Peter King that "[Banning the n-word] is an atrocious idea."

Mr. Sherman, who claims that the proposed rule is "almost racist", explained that the "n-word ending in -er' is racist, but the n-word ending in -a' is not, when used among African-Americans."

According to The MMQB, that view doesn't resonate with former NFL player Harry Carson.

"I find it very disheartening that in our society today we're having a debate about the n-words being used as a term of endearment," Carson said on Sunday. "If that's a term of endearment, go up to your grandfather, or an elderly black person, and use it on them. See how they react. For those who use it, I say they have no sense of history."

The NFL, like any other workplace, should promote respect.

Whether it's splitting hairs, or the line between "-er" and "-a" is much deeper, as an employment lawyer, I advise clients to remind their workforce that, when it comes to comments involving a protected class, the law doesn't focus on the intent of the speaker.

Rather it is how the words are received. If the "victim" is offended and a reasonable person in the victim's shoes would be offended as well, then the speaker is out of line. Period.

(And remember, even if the "victim" is not offended, the words could upset a co-worker who overhears the comment. That too is enough to create a problem).

But, while I do not agree with Mr. Sherman that the proposed rule is "almost racist," Mr. Sherman's assessment, that a rule like the one proposed by the NFL doesn't go far enough, resonates with me.

The gridiron is a workplace, maybe not like any other workplace. But it's a workplace nonetheless. In what workplace across America are words that are (or could reasonably be) construed as ethnic slurs be tolerated?

The NFL should be no different.

Whether it's a 15-yard penalty, or some other punishment, I hope that the NFL takes reasonable steps to eradicate language and behavior that, in any workplace across America, could be reasonably viewed as creating a hostile work environment.

What do you think about the NFL's proposed rule? Let me know in the comments below.

February 18, 2014

Bad things happen when management laments to HR that black people are ugly

teeth.pngJust a reminder that some managers still engage in really stupid behavior.

I was reading this case about an HR Manager of a dentistry practice.

Following an interview between a dentist in her practice and an African-American woman, the dentist allegedly commented to the HR Manager that the person would not be hired, as there were already too many blacks in Lewisville. The HR Manager then supposedly responded that "race is irrelevant." 

And, after the HR Manager told another member of management what had transpired, the manager stated that there were too many blacks in Lewisville and that they were ugly.

Shortly thereafter, the company sacked the HR Manager, to which she responded that her termination was retaliatory; i.e., for complaining about her former employer's discriminatory actions.

In defending the lawsuit, the defendants first contended that the plaintiff had failed to establish that she had complained about discrimination.

Since, all that is required to demonstrate a complaint about discrimination is an understanding that the plaintiff is protesting discriminatory conduct, the plaintiff responded to the defendants' argument, "Like, duh." that her discussion with management was to advise the company of the wrongness of the hiring dentist's conduct and cause him to change his course of action.

Not surprisingly, the court accepted this argument.

Like, duh.

Undeterred, the defendants argued that the plaintiff could not connect her comment to her termination. The plaintiff responded that the proximity in time between her comment and her termination would suffice. Further, she argued that the defendants' reasons for firing her were pretextual, especially in light of Defendants' chief financial officer's statement that the plaintiff had been terminated because "she hired too many blacks."

Good gawd!

The defendants argued that it had a number of non-discriminatory performance-related reasons for terminating the plaintiff's employment, and those may be true. However, allegations of racist statements attributed to multiple members of management is also a very good reason to settle a case.

And increase the sensitivity training budget.

(But then again, if the allegations in this particular case are true, I don't know that any amount of training would fix such a systemic problem of prejudice).

January 23, 2014

The guy fired for grab-ass at work may have been discriminated against

"My ears are burning..."

No, not you, Bill Clinton.

And not you either, Homer Simpson.

I'm talking about this dude who worked as an EMT up in Pittsburgh. He was accused of grabbing his co-worker by the buttocks and placing his fingers very close to her private area.

(I'd be a little more colorful in my commentary, but I already used up my gratuitous jab with the Clinton bit. Besides, I'm saving up my "yinzer" reference for later in this post, and I'm about to play this...)

So, as you can imagine, the cheeky EMT -- couldn't resist, sorry -- who is black, was fired. What you may not believe, however, is that this guy claimed that his former employer's move was racist.

Racist, you say? Maybe...

To prevail on a claim of disparate treatment, a plaintiff must show that his employer treated other similarly-situated employees outside of his protected class more favorably.

The plaintiff here alleged that his employer did not fire another white EMT who allegedly struck a patient. So, the question becomes, is hitting a patient basically the same thing as grabbing a handful of a co-worker's badondadonk (allegedly).

According to a Pennsylvania federal court in this opinion, they're close enough. To use the court's words, "grabbing a coworker's buttocks" and "striking a patient" are of "comparable seriousness."

And since the white employee who struck the patient was merely suspended (while the level of his offense could have warranted termination), while the black employee, who supposedly got a handful of tush, was fired, that was enough for the judge to allow the black employee's discrimination case to proceed to a jury.

Take out the trash

The takeaway here is that while you may be inclined to give employees who misbehave at work second chances, there arises a level of misbehavior -- I'm thinking aggressive physical contact and sexual assault qualify -- where you just fire the employee and move on. Amirite?

Otherwise, you may end up at trial defending a discrimination case.

January 22, 2014

Social media? Anti-harassment? No workplace policy can prevent something this stupid...

On MLK Day, with a few of my co-workers and my four-year-old son, I performed community service. We went to a local center and spent a few hours making peanut butter sandwiches to feed the homeless.

Actually, we spent a half-hour or so making sandwiches. Most of us spent the remainder of the time continuing to make sandwiches, while my son ate peanut butter.

Win-win.

An offensive "tribute" to Martin Luther King

But imagine, if instead of performing community service, my co-workers and I decided to host an "MLK Black Party," where we dressed in basketball jerseys, flashing gang signs and drank from watermelon cups.

KVVU-TV Fox 5 reports here, that this is exactly what a bunch of knucklehead students from the TKE Fraternity at Arizona State University did on Monday. Below is the video report.

These students were not only ignorant enough to host this party, but two shared it on Instagram (complete with hashtags like #mlkparty, #watermeloncup, #hood, #blakcoutformlk and #ihaveadream). Both appear to have since deleted their Instagram accounts (here and here).

Policies can't prevent stupidity.

While it is prudent to educate and train your workforce on policies governing discrimination and responsible use of social media, stupidity like this proves that no matter what type of policy or guidance you may provide, problems in the workplace will arise.

It's how you respond that matters.

When it comes to folks who create a hostile work environment for others, make sure that you take the immediate necessary steps that are reasonably designed to end the harassment.

Arizona State University has suspended the TKE fraternity. We'll see whether some of the students involved continue to receive their education from ASU.

January 16, 2014

And we have an early contender for worst employment-law decision of 2014

roughlegal.jpg

That may be sugar coating it a bit.

A county employee, who applied for a lateral transfer, and ultimately received that transfer, was able to convince two judges on a federal appellate court that the transfer was discriminatory.

That's right. An employee may have a discrimination claim for receiving the specific transfer he requested.

Here's what the two-judge majority wrote in this opinion:

[W]e conclude that under certain circumstances, a voluntary or requested transfer may still give rise to an adverse employment action...We emphasize that the key focus of the inquiry should not be whether the lateral transfer was requested or not requested, or whether the aggrieved plaintiff must ex tempore voice dissatisfaction, but whether the "conditions of the transfer" would have been "objectively intolerable to a reasonable person."

Let me stop there for a second to add that the plaintiff in this case testified that he viewed the transfer as improving his potential for career advancement. Still, that didn't appear to matter much to the Sixth Circuit Court of Appeals:

Indeed, an employee's opinion of the transfer, whether positive or negative, has no dispositive bearing on an employment actions classification as "adverse."

For what it's worth, one judge did dissent. I'm on board with his reasoning:

Deleon voluntarily applied for the job with full knowledge of its pros and cons, making it difficult to fathom how he could premise a claim of retaliation on the transfer alone. A retaliation claim requires the employer to do something bad to the employee--something that might "have dissuaded a reasonable worker from making or supporting a charge of discrimination." That concept cannot be bent and stretched to cover an employer's decision to grant an employee's request for a transfer. No reasonable employee in Deleon's position would have interpreted the transfer as an act designed to prevent him from exercising his rights against anti-discrimination.

And, thankfully, I practice in the Third Circuit Court of Appeals, where the employers I represent are not bound by the majority's decision here.

For more on this decision, check out Jon Hyman's post at the Ohio Employer's Law Blog.

January 10, 2014

Maybe Facebook can't tell you if a candidate is worth hiring, after all

facebutton.pngAccording to a recent study soon to appear in the Journal of Management, not only is Facebook a horrible predictor of how younger recruits will perform for your business -- there is absolutely zero correlation between Facebook activity and job performance -- but those who rely upon Facebook to help judge potential younger recruits, are more likely to disqualify African-American and Hispanic candidates, in favor of Caucasian Facebook users.

Kashmir Hill details the study here in a recent article on Forbes.

So, if failing to meaningfully distinguish between younger job candidates, while increasing your odds of being sued for disparate-impact discrimination appeals to you, well then, have at it hoss!

January 7, 2014

Judge slashes jury award for black plaintiff called the "N"-word -- by her black boss

200px-One-half.pngBack in September, 2013, I blogged here about a NY jury finding that a black plaintiff called "nigger" -- by her black boss -- had been subjected to race discrimination.

Actually, her boss called her "nigger" eight times!

"Well, ladies and gentlemen of the jury, that's 103 fewer times than the 'N'-word was used in Django Unchained," is what the defense's closing argument sounded like, I imagine.

Certainly, the jury was not too keen on that opprobrious slur being thrown around the workplace, no matter who the speaker. So, it responded with a $280K verdict.

Last week, however, the judge cut the jury award in half.

That's not to say the judge condoned the employer's behavior. 

In this opinion, Judge Harold Baer, Jr. underscored that "under no circumstances that I can conceive of would calling a subordinate a nigger be acceptable conduct." 

Judge Baer further found that there was sufficient evidence to demonstrate that the defendant's "plethora of discriminatory comments supports the jury's finding of malice or reckless indifference to Plaintiff's right to work free from race and gender discrimination."

Was the plaintiff asking for trouble?

But, when it came to awarding compensatory damages for pain and suffering, Judge Baer concluded that the jury was too generous, especially when taking into account that the "Plaintiff's efforts to invite a confrontation."

(Yep, you read that right).

Additionally, Plaintiff's decision to record her interactions with Carmona also supports a reduced emotional distress award. Thus, Plaintiff's recordings, while surely helpful in proving her case, also demonstrate a willingness to engage Carmona to document his animus. And while not detracting from the fact that these comments were made, they pretty clearly reveal Plaintiff's efforts to invite a confrontation with Carmona and fail to bolster support for an award that is founded on extreme emotional distress

So, instead of getting $250K, the plaintiff can now choose a new trial on damages or a reduced compensatory award of $128,109.59.

Don't be like this employer.

Even at the reduced price of $15,000 per "N"-word, that's enough incentive for employers everywhere to eradicate that hateful word from the workplace.

November 18, 2013

The prison guard who left the work-release inmates unattended lost his discrimination claim

friedchicken.JPGYeah, I know. Shocker, right?

A prison guard for the Arkansas Department of Corrections drove 27 work-release inmates in a van to a parking lot next to a fried chicken joint. Rather than hit the drive thru, the prison guard left the 27 criminals in the van and went inside to place his order.

For what it's worth, the prison guard testified that there were no other customers ahead of him in line. Further, the prison guard thought that his chicken stop did not violate any employer policy or rule.

[Can't wait until I revise my next prison guard handbook to include the "Don't leave work-release inmates alone in a getaway vehicle to order fried chicken" policy].

So, yeah, dude got fired.

He filed a grievance and lost. Then he sued for race discrimination in federal court, and now finds his out-of-court self the subject of a snarky post on an employment-law blog.

Why did he lose in federal court, you ask?

Would you believe that the prison guard was unable to show that his former employer's reasons for fire him were pretext for discrimination? Specifically, the prison guard couldn't point the court to anyone who had also gone on a chicken run and left 27 work-release inmates unattended.

The opinion is silent about whether he enjoyed the chicken.

The case is Beard v. Arkansas Dep't of Correction.

This post has been updated to remove typos.

September 11, 2013

Waitress suspended for posting racist customer receipt on Facebook

red lobsterIt's a story that first made news over the weekend and is quickly picking up steam, ironically, because of social media.

A customer at a Tennessee Red Lobster restaurant allegedly left a racist message on a receipt. An African American waitress subsequently posted the receipt to Facebook with the message:

"This is what I got as a tip last night...so happy to live in the proud southern states..God Bless America, land of the free and home of the low class racists of Tennessee"

A Red Lobster spokesperson subsequently told the Consumerist, that it is "extremely disturbed by this situation and [we] are currently investigating to determine exactly what happened."

Meanwhile, the Daily Mail reports that the waitress has been suspended with full pay pending the outcome of the investigation.

Ten years ago, we would have never heard about this story unless, maybe, we lived in the same town as this particular Red Lobster. However, today, this viral story presents front-page issues, which are becoming more and more prevalent. Sadly, your company may ultimately face similar workplace issues when racism and social media intersect.

So, managers, HR professionals, and employment lawyers, put yourselves in the shoes of the decision-makers at Red Lobster and tell me in the comments below, how would you handle this situation -- especially with respect to the waitress?

UPDATE (9/14/13): The Consumerist reported yesterday that "the server is back at work this week per her usual schedule, and didn't miss a day of work during the brouhaha."