Tuesday, October 25, 2016

Just because it might be legal doesn’t make it right

The plaintiff in Tennial v. UPS [pdf], a former UPS manager, claimed that his manager placed him on a performance improvement plan, and ultimately demoted him, because of his race. In support of this claim, he relied in part on: 1) his manager’s alleged use of the word “n*****” in referencing another, nonparty UPS employee, and (2) a district president’s use of the word “boys” in reference to Tennial’s black coworkers.

The 6th Circuit concluded that these two stray comments could not stand as direct evidence in support of Tennial’s race-discrimination claim:
Direct evidence consists of facts that, “if believed, require[] the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.” In other words, when direct evidence is provided, no inferences are needed in order to conclude that racial discrimination is afoot. … 
A finding of racial discrimination based on these comments, moreover, would require us to make inferences. First, we would have to infer that Cochran’s alleged use of the n-word with respect to an urelated employee meant that his decision to demote Tennial was due to a similar racial animus. We would also be required to infer that Harm’s reference to Tennial’s coworkers as “boys” meant that his animus trickled down and influenced the individual decisions of Cochran and Slabaugh to initiate Tennial’s MPIP and demotion process.
So, this employer won, and avoided liability for a manager’s alleged use of the N-word. Just because something is legally defensible, however, doesn’t make it right. Merely because an employer can win a case for a stray racial epithet does not mean that any employer should tolerate this language. If I’m this employer (or the lawyer advising this employer), this manager would have been terminated upon an investigation reasonably confirming the misconduct.

I reach this conclusion for two reasons.

First, it’s the morally correct position. If someone uses the N-word to describe African Americans, even once, that person is a bigot, and bigots have no place in my workplace.

Secondly, if I, as the company’s lawyer, need to defend to a judge or jury my client’s actions, I need to able to argue that one stray comment doesn’t violate Title VII and, more importantly, that my client doesn’t tolerate such bigotry. Not firing the N-bomb utterer is nothing short of condoning the racism, and, if you’re condoning racism, you’re no better than the alleged racist.