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What is Discrimination?

What is Discrimination?

by | Jun 14, 2021 | Discrimination, Race/Color/Origin 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

by | Feb 1, 2021 | Discrimination, Race/Color/Origin Discrimination

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.