Calling someone “racist” for posting “All Lives Matter” on Facebook isn’t race discrimination.

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This post doesn’t deliver as much earth-shattering HR compliance as it does clickbait. But, since you’re here, hang out for a bit why don’t you?

(Ok, I’ve got a few tips for you at the end.)

The plaintiff in Squitieri v. Piedmont (opinion here) maintained a personal Facebook account. According to the plaintiff’s complaint, back in the Summer of 2016, she posted about race relations and the police. It was a post that elicited a few comments.

Yeah, I know, shocking. Remember that time you posted on Facebook about politics and everyone, including members of the other political party, responded that you had convinced them that you were right? Me neither.

Anyway, after reading the comments to her initial post, the plaintiff doubled down:

All lives matter. Period. I will not be preached to. I never said Black lives dont [sic] matter. I believe Black lives matter is stoking the fire of racial tension and hate by exploiting deaths and encouraging division. Period. Look again at my words and do not put words in my mouth.

The plaintiff alleged that, after her Facebook posts, co-workers harassed her at work. According to the plaintiff, some of them “falsely called her a racist and derided her character,” after which the plaintiff complained to company management.

And then she sued.

In two of her claims against the company and the individual defendants, the ones who called her racist, the plaintiff claimed that she was subjected to a hostile work environment based on her race (white).

At a bare minimum, a plaintiff alleging a hostile work environment based on her race must demonstrate that someone or someones subjected her to unwelcome behavior based on, you guessed it, her race.

So, what about calling someone racist? Yeah, not so much. I’ll step aside for a sec while Judge Graham Mullen explains:

First, stating that Plaintiff is “racist” is not racial on its face and is not related to Plaintiff’s race. Although such comments may have been unwelcome, there is simply no basis to conclude that they were racially-motivated…. Plaintiff’s Amended Complaint clearly states that the alleged harassment to which she was subjected involved Facebook postings and rumors indicating that she is racist and should be disciplined. Under that theory, any alleged harassment was based on her co-workers’ perceptions that she was racist, not because of her race…. While allegedly calling Plaintiff racist may be offensive, it does not constitute unambiguous epithets or extremely abusive language and does not compare to the racial epithets, slurs, and extremely abusive language courts have found to be sufficiently severe within the meaning of the law.

So, what can we take away from this case?

As a matter of law, employee skin can’t be paper thin. But, you know the expression “death by a thousand paper cuts, right?” So, if we were to change the facts of the case a bit to where co-workers ridiculed the plaintiff consistently because of her race, then we start to have the trappings of a true hostile work environment.

Therefore, it is important for employers to educate employees about the type of workplace behaviors that the company won’t tolerate. But, it is equally important for employers to provide clear avenues for employees who either experience or witness that bad behavior to complain about it. That way the company can nip the problem in the bud before it develops into a legally-cognizable hostile work environment.

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