What is Discrimination?

What is Discrimination?

The EEOC recently sued Autos of Dallas, a luxury auto retailer in Plano, for race discrimination.

At a holiday party, Autos of Dallas awarded its African American salesman a trophy that labeled him the employee “Least Likely to Be Seen in the Dark.”  The employee (and others) found the trophy to be very offensive. 

After the employee complained to the General Manager, he was told it “was a joke.”  Autos of Dallas took no action on the employee’s complaint.

The employee ultimately resigned after he continued to be subjected to a hostile environment that included other employees telling he that he needed to smile to be seen in the poorly lit section of the dealership.

When the EEOC sued, the Dallas Morning News quoted Autos of Dallas’s attorney as saying the company had investigated the claim and “found no evidence of discrimination.”

So that begs the question:  what is discrimination?

One of the best definitions of both prejudice and discrimination that I’ve seen come from Robin Diangelo’s book, White Fragility. As Diangelo describes it, to understand racism, we need to under the difference between “prejudice” and “discrimination.”

Prejudice, as defined by Diangelo, is “pre-judgment about another person based on the social groups to which that person belongs.”  Prejudice consists of thoughts and feeling—which can include stereotypes, attitudes and generalizations—based on little or no experience then projected on to everyone from that group.“Discrimination” is action based on prejudice.  This action can include ignoring, exclusion, threats, ridicule, slander and violence.

Diangelo’s simple definitions make it very clear to see that what happened to this auto salesman is discrimination.  He was ridiculed and made fun of by his coworkers simply because of the color of his skin. 

Instead of acknowledging a grave error in judgement, Autos of Dallas doubled down on its prejudice by describing it “as a joke.”

Whether this employee will win his lawsuit remains to be seen.  A court might find he was not subjected to a hostile work environment because what happened might not have been “severe” enough or “pervasive” enough to meet the tough legal standard.  Because the employee was not fired, but quit, a court might find he was not constructively discharged under the tough legal standard. 

However, that this happened at all demonstrates the need for continued discussion and education about what is discriminatory behavior.  When whether to discuss “critical race theory” is such a hot button issue, this case demonstrates why discussions need to continue.

At least one Autos of Dallas employee thought it would be an acceptable “joke” to (1) create this award, (2) actually purchase a trophy with which to make this award, and (3) call this African American employee to the front of the room at the company holiday party and to award him this trophy for being Least Likely to Be Seen in the Dark. The employee was told that it “was a joke” after he complained.  This demonstrates exactly why we need to continue to teach people about racism and discrimination. 

The people in the world who did not know that awarding this trophy is wrong on many levels have much more to learn. This was no joke.  This was discrimination—it was action (ridicule) based on prejudice.  Kudos for the EEOC for suing. 

Racial Slurs in the Workplace

Racial Slurs in the Workplace

Discrimination takes many forms.  One form is a hostile work environment created when an employee is subjected to racial slurs and a racially intimidating, hostile, or offensive working environment because of the employee’s protected characteristic –such as race, sex, or age.

To prove this discrimination, the employee must show the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

With racial slurs, the question arises:  how many racial slurs does it take to prove such a hostile work environment?

This question is particularly troubling when the employee has been called the N-word.  Some courts, recognizing the N-word as one of the most odious racial epithets,  have held that even one use of the N-word might be enough to create a hostile work environment. Other courts, including the Fifth Circuit Court of Appeals, disagree.  While the Fifth Circuit agrees that the N-word is a highly offensive term, under its precedent, one use of the N-word alone (or with other racial slurs) may not be enough for an employee to even create a fact issue as to whether the employee was subjected to a hostile work environment.

On January 15, 2021, Robert Collier asked the U.S. Supreme Court to answer the question of how many racial slurs it takes to create a hostile work environment.  Robert Collier v. Dallas County Hospital District d/b/a Parkland Hospital, Case No. 20-1004. A copy of the petition for certiorari is at:  https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-1004.html.

Robert Collier worked at Parkland Hospital in Dallas as an operating room aide. During his employment, he was called a “boy” by white nurses. He had to use an elevator in which the N-word was etched into the wall of an elevator. Two swastikas were painted on the wall of a storage room.  Collier complained about the N-word etched in the elevator and the two swastikas to Human Resources and his department head, but no immediate action was taken.  Though the N-word was eventually scratched out in the elevator, Collier believed it was done by “some black person who was tired of seeing it” because it was not done professionally.  Parkland’s Operating Room Director knew of the swastikas and testified that he planned to cover them up “at some point,” but the two swastikas remained on the walls for nearly two years. 

Collier was terminated and sued, arguing he had been subjected to a hostile work environment while he worked at Parkland. He lost. 

The district court granted a motion for summary judgment.  It held that, while the N-word is racially offensive and universally condemned and that the swastikas could be interpreted as offensive, under guiding Fifth Circuit precedent, no reasonable jury could find Parkland’s conduct to be sufficiently hostile or abusive.  The Fifth Circuit affirmed this ruling.

Had Collier lived in a different part of the country where courts recognize that one use of a racial slur might create a hostile work environment, Collier might have won his lawsuit.

Now, Collier and his attorneys are asking the Supreme Court to answer these questions:

  • Whether an employee’s exposure to the N-word in the workplace is severe enough to justify sending his hostile work environment claim to a jury?
  • Whether and in what circumstances racial epithets in the workplace are “extremely serious” incidents that are sufficient to create a hostile work environment.

We do not know if the Supreme Court will take this case and answer these questions.  However, given the split of authority between the circuits, getting clear answers to these questions would benefit both companies and employees.

Stay tuned.

Barriers to Justice

Barriers to Justice

One of the hardest parts of my job is explaining to people that not every wrong has a remedy. Sometimes, the law does not give us a remedy for even truly egregious conduct.  Sometimes, the courts erected barriers to getting justice.

Justice Carlton Reeves of Mississippi wrote a groundbreaking opinion taking to task the role courts play in inventing “legal requirements that are untethered to the complexity of the real world.”  This case is Jamison v. McClendon. This long, but well worth reading, opinion can be found at: https://bit.ly/34a8Bc4

Justice Reeves had to rule that an African American man subjected to two-hour, life-altering pretextual traffic stop had no claim against the police officer who stopped him because of what Justice Reeves calls an “invented legal doctrine” called “qualified immunity.” This doctrine effectively protects law enforcement officers from facing real consequences for wrongdoing.

As Justice Reeves said, “this has to stop.” 

Mr. Jamison purchased a new car in Arizona and was driving home to South Carolina.  In Mississippi, he was pulled over by a police officer who claimed the paper tag had “folded over” to where he could not see it. Mr. Jamison provided his license, insurance paperwork, and car bill of sale. The police officer’s check of Mr. Jamison’s license came back clear. Yet, the police officer put his hand in the car and five times asked to search the vehicle. He lied to Mr. Jamison, saying he had gotten a call indicating that there were 10 kilos of cocaine in the car.  Finally, after a heated conversation, Mr. Jamison got frustrated and capitulated. He then had to stand in front of the car for hours while the police officer searched every inch of the car, even tearing up the upholstery.  Of course, the police officer found nothing. 

Mr. Jamison sued, arguing this his Fourth Amendment right were violated by the officer’s acts in “falsely stopping him, searching his car and detaining him.” In addressing the issue of whether Mr. Jamison’s consent to the search was coerced, Justice Reeves noted the reality of Mr. Jamison’s African American race could not be ignored in Pelahatchie.

Pelahatchie is just one hour south of Philadelphia, Mississippi, a town made infamous for three lynchings in 1964.  In 2011, less than 30 minutes from where Mr. Jamison was, a handful of people murdered a Black, gay man, and the murderers were from Pelahatchie.  As Justice Reeves noted, “For Black people, this isn’t mere history.  It’s the present.” He pointed out the legitimate fear of African Americans during any traffic stop.

Despite his clear dismay at this outcome, Justice Reeves was compelled to follow the law.  Unfortunately, the current status of the case law on qualified immunity compelled Justice Reeves to dismiss Mr. Jamison’s claim.

Justice Reeves showed real current in calling out judges for their role in creating barriers to justice.

Justice Reeves explained how judges err when they impermissibly substitute a jury determination with their own.  Justice Reeves explained how judges err again when they “invent legal requirements that are untethered to the complexity of the real world.”  He traced the history of how courts added “one judge-made barrier after another” in various kinds of cases and demonstrated how those “judge-made barriers” operate to distract from the real point:  determining if unlawful discrimination occurred.

Justice Reeves ruled as he had to under the law.  Then, he closed with these powerful words:  “Let us waste no time in righting this wrong.”

Too many employment discrimination cases face “judge-made” barriers that prevent a plaintiff from being able to prove discrimination.  These “legal requirements” are frustrating and often untethered to the real world.

An example of one such “judge-made” requirement is that a plaintiff in an employment discrimination case must have someone “nearly identical” to compare himself or herself to.  The courts interpret this to a ridiculous granular level.  One good example is an African American man who lost his discrimination case.  He was fired for allegedly stealing from the company. He claimed discrimination because a white co-worker had also allegedly stolen from the company but not gotten fired.  The court said the white co-worker was not “similarly situated” to him because the white man had allegedly stolen from the company’s customer—not the company. Thus, they were not “nearly identical.” Yet, in the real world, is stealing from a customer better? Either way, both were accused of stealing, and one was fired, and one was not.  That should be disparate treatment under the law.

Another example of a judicial barrier to justice arises in hostile work environment claims.  A plaintiff must show that he or she was subject to “severe or pervasive” conduct that has the effect of substantially altering work conditions.  Yet, courts tolerate remarkable levels of abuse before recognizing that it might arise to the level of being “severe or pervasive.”

I once heard a federal judge say that he was not sure that an African American man who had been called the “n” word three times and had a noose hung in his locker could meet the legal standard to show “severe or pervasive” treatment for his hostile work environment claim. If that was not enough, what would be?

At this time and in the wake of the George Floyd killing and the awakening our nation is undergoing, it is time for courts to wake up and do away with these legal requirements that are untethered to the real world.  It is time to remove these barriers to justice.

Justice Reeves said it best:  “Let us waste no time in righting this wrong.”