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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."

September 5, 2013

Jury awards $280K to black female called N-word -- by her black boss

A black employee who claimed that her boss, also black, called her "nigger" eight times, had her day in court recently, as she put her race discrimination claims to a federal jury.

The defense argued that the use of the n-word here was culturally acceptable because both the "victim" and the "harasser" black. But, during closing argument, the plaintiff's attorney told jurors, "When you use the word nigger to an African-American, no matter how many alternative definitions that you may try to substitute with the word nigger, that is no different than calling a Hispanic by the worst possible word you can call a Hispanic, calling a homosexual male the worst possible word that you can call a homosexual male."

The jury agreed with the plaintiff. Larry Neumeister at The Huffington Post reports here, that the jury awarded the plaintiff $30,000 in punitive damages and $250,000 in compensatory damages.

While some may debate the impact of a white person directing the n-word at a black person versus a black person engaging in that same behavior, I'm not at all shocked that the jury didn't accept the defense's argument.

Remember folks, in a discrimination case, it does not matter the intent of the person making the comment. All that matters is how it is received and whether a reasonable person standing in the shoes of he "victim" would also be offended. So, use this case as a workplace lesson. Remind employees that what they say is all that matters -- not what they intend. And when it comes to slurs, any word that any employee could perceive as a slur should be off-limits -- no matter who says it or who hears it.

Hey, while some courts get into semantics, like considering which n-word is used when determining whether there exists a racially hostile work environment, don't allow your company to be the one that has to make that argument.

August 26, 2013

Paula Deen discrimination lawsuit dismissed after parties settle

Thumbnail image for PaulaDeen.jpg

On Friday, a federal court in Georgia dismissed all of the remaining discrimination counts against Paula Deen and her brother, Bubba, after the parties reported to the court that the two sides had settled.

The settlement terms are undisclosed.

In a statement emailed to The Associated Press, Ms. Deen's publicist wrote:

We are pleased with the court's ruling today that Lisa Jackson's claims of race discrimination have been dismissed. As Ms. Deen has stated before, she is confident that those who truly know how she lives her life know that she believes in equal opportunity, kindness and fairness for everyone.

Somebody tell that to Ms. Deen's sponsors -- err, former sponsors. Just start typing the words "list of sponsors" (without the quotes) into the Google search bar and see how it autofills in the most popular searches once who put a space after the word "sponsors."

(I'll give you a hint, it's not "list of sponsors dying to empty the coffers on TheEmployerHandbook.com click-thru banner ads" ... yet)

But for Ms. Deen, at least she still has her loyal fans at -- wait, this can't be right, can it? -- sure enough: ButterForPaula.org.

August 13, 2013

Paula Deen beats the race-discrimination claims that crushed her

Paula Deen with my dishtowelsSomewhere, I picture the folks at Merriam Webster franticly revising the definition of "Pyrrhic" to cross-reference a stick of butter Paula Deen.

Yesterday at The Employer Handbook, I discussed the EEOC losing a major battle in its war against background checks

Today, it's all about winning the battle, but losing the war. 

A federal court, in this decision, has dismissed race discrimination claims against Ms. Deen and the other defendants. (The remaining non-race-discrimination claims survive).

The court determined that, "at best, Plaintiff is an accidental victim of the alleged racial discrimination." Specifically, it held that the Plaintiff, who is white, lacks standing to assert claims that her fellow African Americans co-workers were discriminated against on the basis of their race. This notwithstanding Plaintiff's allegations that the hostile work environment that Ms. Deen and the other defendants created for black co-workers created rancor in the workplace overall, which detrimentally affected the Plaintiff. To that end, the Court remarked that "workplace harmony is not an interest sought to be protected" under anti-discrimination laws.

So, victory for Ms. Deen on the race claims. But, that sound you hear is not Team Deen popping bottles of champagne.

August 12, 2013

In its war on background checks, the EEOC loses a major early battle

Late last year, in this post, I highlighted the six issues that the United States Equal Employment Commission prioritized in its Strategic Enforcement Plan.  Numero uno is eliminating barriers in recruitment and hiring. 

Even before it released its Strategic Enforcement Plan, earlier in 2012, the EEOC telegraphed that it would closely scrutinize criminal background checks employers run on job applicants to determine whether they may disparately impact minorities.

crimback.jpg

But even before that, in 2009, the EEOC came out guns blazing, when it announced a lawsuit against Freeman (also known as the Freeman Companies), a nationwide convention, exhibition and corporate events marketing company. In it's lawsuit, the EEOC alleged that Freeman unlawfully "rejected job applicants based on their credit history and if they have had one or more of various types of criminal charges or convictions."

Well, on Friday, in this opinion, a Maryland federal court dismissed the EEOC's action against Freeman. While the court conceded that "some specific uses of criminal and credit background checks may be discriminatory and violate the provision of Title VII," the EEOC could not meet its burden of "supplying reliable expert testimony and statistical analysis that demonstrates disparate impact stemming from a specific employment practice."

And what, you may ask, did the court find so unreliable about the EEOC's expert analysis in this case? Here are a few choice selections from the Court's opinion:

  • The judge noted what "appear to be such a plethora of errors and analytical fallacies" in an EEOC expert's conclusions to render them "completely unreliable, and insufficient to support a finding of disparate impact."

  • He then underscored that the "mind-boggling number of errors" contained in the EEOC expert's database "could alone render his disparate impact conclusions worthless."

  • To add insult to injury, the judge piled on the EEOC expert by noting that he further "managed to introduce fresh errors into his new analysis, including many additional duplicates, material coding errors, and more double-counting."

  • And when the EEOC tried to introduce another report from a second corroborating expert, the judge shot that report down as "likewise unreliable and inadmissible."

  • Finally, the judge turned his attention away from the EEOC's experts, and blasted the EEOC itself for trying to "make a mockery of procedural standards."

But where the EEOC really fell down here was with its failure to isolate a specific employment practice that allegedly caused a disparate impact. That is, Freeman had a variety of background screens in effect. Instead of tackling them individually, the EEOC lumped them all together and claimed that, collectively, they had a disparate impact on minorities. According to the court, what the EEOC should have done is "demonstrate that each particular challenged employment practice causes a disparate impact," unless doing so proves unfeasible, which was not the case here.

The court concluded its opinion by offering a stern warning to the EEOC, which could carry over to other similar actions now pending against other employers:

By bringing actions of this nature, the EEOC has placed many employers in the "Hobson's choice" of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers. Something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim based upon criminal history and credit checks. To require less, would be to condemn the use of common sense, and this is simply not what the discrimination laws of this country require.

Let's call a spade a spade: this is a major setback for the EEOC. However, employers must recognize that facially neutral background checks may have a disparate impact on certain protected classes. While the EEOC's "individualized assessment" strikes me as impracticable, I do agree with the EEOC that employers are well served to consider the nature of the position to be filled, as well as whether a background check exclusion is actually job-related and consistent with the needs of the business. Doing so, helps strike a reasonable balance to protect the business, while not excluding viable candidates.

Disclaimer: I am a pro bono mediator for the EEOC.

August 6, 2013

Want a really stupid adjective to use on an employee's performance review?

Bucharest_ghetto.jpgThen I suggest "ghetto."

Consider this your performance review ProTip for Tuesday, courtesy of this recent decision from a Texas federal court, in which an employer's summary judgment motion was denied, and a Mexican-American plaintiff's race and national origin discrimination claims will proceed to trial.

The smoking gun, it seems, was an affidavit from one of the plaintiff's supervisors filed in support of the employer's motion for summary judgment, in which the supervisor stated, "I advised Ms. Garza that this 'ghetto-ness' would no longer be tolerated, and that she would be terminated if it continued." The plaintiff argued that this statement was direct evidence of discrimination against her. The defendant countered with the argument that "cases in which comments containing the word 'ghetto' have been viewed as facially discriminatory generally involve African American employees, while Garza is Hispanic."

Now, look folks. I don't know how things work in Texas. They've got a Heisman Trophy winner who appears to be imploding right before our very eyes, and this. I reckon -- see how I did that? -- that the only two things I can trust down there are good barbecue and Tony Romo leading the Cowboys right out of the playoffs in December. The "ghetto relates only to African American employees" defense makes about as much sense as an Amanda Bynes tweet doesn't strike me as compelling.

Well, it didn't move the court either. Instead, the it took the logical route and reviewed the dictionary definition of "ghetto", which does not refer to African-Americans, only to racial minorities, of which Mexican-American is one of them. Then add in that the plaintiff's manager referred to the "ghetto-ness" in Garza's office as a reason behind her termination and noted this on her Termination Report, and you've a got a case going to trial.

And now, comin' atcha with a little two for Tuesday. Shout out to the defendants. We have Jay-Z and Pras, Mya, and ODB.

Photo credit: valentine1692005 (ghetto bucharest) [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

June 25, 2013

Supreme Court delivers two -- count 'em TWO -- wins for employers

STT.pngThis week, I am on vacation. The Supreme Court didn't get my memo. Fine. But, I'm not putting down my beer to write this post. So, you get a one-handed rundown of the two employment-law decisions the court issued yesterday. 

Pardon my typos after the jump...

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