Even a few stray remarks can land your business in hot water…as one employer recently learned.
More after the jump…
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A cashier at a store in Mississippi was promoted to lead associate just a few months after her employment began. A few years later, the lead associate expressed interest in becoming an assistant manager. That promotion never happened.
[Editor’s Note: Of course, it never happened. Otherwise, I’d be blogging about the series premiere of Better Call Saul].
According to the EEOC, this employee was never promoted because of her race. Specifically, and you can read the full opinion here, the EEOC alleged that the employee’s supervisor was a nasty racist.
Store employees heard O’Neal, the store manager and decision maker, frequently use the [n-word] when referring to black persons, and once call Hersey a “lazy black [n-word].” O’Neal also told an employee that “she didn’t want a [n-word] working for her and that she was trying to get Mrs. Dee [Hersey] to leave,” expressly stating that she “was not going to make [Hersey] her assistant because she did not want a [n-word] working for her.”
Now, you’d think that this would be an open-and-shut case for the EEOC. Except, the supervisor made some of the comments more than one year after the last challenged promotion decision. Therefore, because the comments did not directly relate to the employment decision at issue, they did not constitute direct evidence of discrimination. Rather, comments that are not temporally related get classified as stray remarks.
But, if you think that a comment here and there can’t result in significant exposure for your business, well…
In many instances, a plaintiff can still prevail on a race discrimination claim through circumstantial evidence; i.e., with facts that reflect discriminatory animus on the part of a person that is either primarily responsible for the challenged employment action or by a person with influence or leverage over the relevant decisionmaker. So, if one were to believe the EEOC’s evidence, then O’Neal said plenty to lead a reasonable person to conclude that the lead associate was not promoted because of her race.
So, ask yourself: Has it been a while since you conducted anti-harassment training in your workplace? If so, use this case as motivation to get back to basics and remind your workforce that this type of behavior is never tolerated in the workplace. Because even a few stray comments can create a big legal headache for your company.