Thursday, August 21, 2008

Blasting through the bulletproof employee


Butler v. Alabama Dept. of Transportation (11th Cir. 7/30/08) concerns a black employee belatedly complaining that a white employee used the word "nigger" in her presence, but admittedly not directed at her. After Butler was terminated, she successfully prosecuted a claim for retaliation. The 11th Circuit took away the $200,000 verdict because the racial epithets of which Butler complained did not amount to actionable harassment:

Assuming that Butler did believe that Stacey’s words immediately after the wreck amounted to an unlawful employment practice ..., her belief is not objectively reasonable. It is not even close. The incident consisted of Stacey’s use of a racial epithet twice a few minutes apart. What Stacey said was, as Butler testified, “uncalled for” and “ugly.” But not every uncalled for, ugly, racist statement by a co-worker is an unlawful employment practice. This incident occurred away from work. It did not happen within the hearing of any supervisors. Butler admits that she never thought the epithets, deplorable as they are, were aimed at her. She has never even suggested that this one-time use of vile language away from work created a hostile work environment. She also conceded during cross-examination that the incident did not affect her ability to do her job. The incident that gave rise to this case is nowhere near enough to create a racially hostile environment.

This case is a boon for employers. Often, employees will complain about bogus incidents of discrimination in an attempt to bullet-proof themselves from an adverse action. Employees believe that the mere threat of retaliation liability will protect their jobs. Sometimes employers become paralyzed over the threat of litigation, no matter how baseless it might be. This case sends the right message to employees, that a meritless complaint will not protect a poor performer.

Of course, this case merely begs the question of what constitutes actionable discrimination. Employers can still get themselves in trouble by trying to make legal judgments of what is and is not a legitimate complaint of discrimination. Whenever a company is thinking about terminating or taking any other adverse action against an employee who has complained about discrimination, it is best to get employment counsel involved to make sure that every "i" is dotted and "t" crossed, so that when the inevitable retaliation claim is filed the company is in the best position to defend itself.

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