Thursday, January 25, 2024

Just because something isn’t “illegal” doesn’t mean it’s acceptable

“This is very basic, elementary communication. This has nothing to do with training or understanding, this is daily required functioning.”

That’s just part of an email that a law firm partner sent to a Black associate. In her recently-filed lawsuit, she alleges that the firm terminated her in retaliation for complaining to HR that she believed that email was racially motivated.

In response to her internal complaint, HR told her that its investigation revealed that while the email was “inappropriate,” it was not racist because the partner treated everyone the same way. Thus, he was not singling her out because of her race.

The equal-opportunity a-hole defense is a legit defense. Harassment is only illegal if it’s “because of” a protected characteristic (race, sex, and all of the others). “Because of” means that the harassment either consisted of expressly “-ist” conduct, or that it singled out one protected class for worse treatment than others. In this case, the content of the email isn’t racist on its face, and the partner did not single out this Black associate for mistreatment. Therefore, the fact that he mistreated everyone saves his and the firm’s bacon on the harassment claim.

Two important points, however.

1./ Even though the harassment claim may not have merit, don’t forget about the retaliation claim. Even if the underlying complained-of conduct might not be unlawful, you still can’t retaliate against an employee for bringing it to your attention. I have no knowledge as to why the firm fired this associate, but if it’s because of her complaint to HR about the partner’s allegedly racist email, it would be unlawful retaliation.

2./ Just because something isn’t “illegal” doesn’t make it right. Bad behavior is bad behavior, and it should not be excused just because it doesn’t rise to the level of unlawful behavior. Businesses that make excuses for inappropriate behavior just because it doesn’t meet the definition of protected-class harassment are: (i) businesses I don’t want to work for; and (ii) are a liability waiting to happen.