Court upholds termination of employee for off-duty Facebook posts critical of Black Lives Matter

"Black lives" matter causes segregation. Have you ever hear[d] of "white lives" matter or "[J]ewish" lives matter[?] No. Equal opportunity.

That's what Heather McVey posted to her personal Facebook account in the wake of George Floyd's murder and the ensuing Black Lives Matter protests.

An administrator of the hospital at which McVey worked as a nurse discovered her post, and, following an investigation the hospital fired her. Its stated reason was that "she posted on her social media a clearly racist dog whistle post, which was inconsistent with the vision and the mission and the core values of AtlantiCare."

How do you handle employees talking about “replacement theory” at work?

The "Great Replacement" is a conspiracy theory that certain leftist political forces are bringing non-whites into the United States and other Western countries to "replace" white voters to achieve their political agenda. It is often tied to anti-immigration groups and white supremacists. It's also the motivation that caused Payton Gendron to shoot 13 Black individuals in a Buffalo supermarket this past weekend, killing 10.

It's also way more mainstream than you might think or want to believe, with certain mainstream media outlets substituting its traditional racist and antisemitic underpinnings, including the use of terms of "white genocide" and "Jewish cabal," with a more politically focused narrative. Indeed, one in three Americans believe in "replacement theory."

How do you handle it if an employee complains that co-workers are promoting the Great Replacement? 

Coronavirus Update 9-15-21: Do mandatory vaccination policies have an adverse impact on minority employees?

With President Biden's announcement of his plan to vaccinate all employees of employers with 100 or more employees, the nation is keenly focused on workplace mandatory vaccination policies. This has led some to question whether the President's plan unlawfully discriminates against minority employees.

There is little doubt that vaccination rates among Blacks and Hispanics lags behind that of Whites (which isn't that great to begin with). At the latest count, only 43% of Black Americans and 48% of Hispanic Americans are vaccinated, compared with 52% of White Americans. The reason for this greater vaccine hesitancy within minority communities is understandable and well documented, particularly when the government is promoting or flat-out requiring the vaccine. See the Tuskegee Experiment (one of our nation's greatest embarrassments … and that's saying a lot).

All of this begs the question — is a mandatory vaccination policy discriminatory against Blacks and Hispanics. Or, more technically speaking, does such a policy adversely impact them?

Yes, Karen, your boss really can fire you for being a Karen

Do you remember Amy Cooper? She was the woman who called police on a Black man (Christian Cooper, no relation) who crossed her path while she was walking her dog in Central Park. One day later, her employer, Franklin Templeton, fired her, explaining, "We do not tolerate racism of any kind at Franklin Templeton." One year late, she has filed suit against her former employer, claiming that she was wrongfully terminated based on the company's failure to investigate what actually happened in the park.

Through a spokesperson, Franklin Templeton denies any wrongdoing related to Cooper's firing. "We believe the circumstances of the situation speak for themselves and that the company responded appropriately. We will defend against these baseless claims." 

In other words, Christian Cooper's viral cell phone video speaks for itself. Franklin Templeton either fired Amy Cooper because it concluded that she's racist, because her actions brought the firm negative publicity, or both. Either way, I see no chance that Amy Cooper's lawsuit succeeds.

Pop culture as a means to break down inherent biases and prejudiced divides

Think about it. If you want to know where the American public is, look at the money being spent on advertising. Did you ever five years ago think every second or third ad out of five or six you turn on would be biracial couples. [Applause] No, I'm not being facetious. The reason I'm so hopeful is this new generation. They're not like us. They're thinking differently. They're more open. And we have to take advantage of it.

Those were the words of President Biden last night, speaking about race relations during his CNN Town Hall. 

He's 100 percent correct. 

Podcast recommendation: The Test Kitchen

I'm always on the lookout for new podcasts to add to my queue. Today's is a doozy. It's called The Test Kitchen, and it comes from the editors of Reply All at Gimlet Media. In four parts, it will tell a sadly familiar tale of racism and toxicity in the workplace. The workplace at issue is Bon Appétit magazine. 

Here's the set-up.

You'll find the full episode here, or wherever you listen to podcasts.

How many N-words create a hostile work environment?

Last week, the U.S. Supreme Court was asked to answer these questions:

Whether an employee's exposure to the N-word in the workplace is severe enough to send his Title VII hostile-work-environment claim to a trier of fact.

Whether and in what circumstances racial epithets in the workplace are "extremely serious" incidents sufficient to create a hostile work environment under Title VII, rather than nonactionable "mere utterances."

Coronavirus Update 12-17-2020, part 2: The COVID-19 vaccine and race discrimination

One issue the EEOC omitted from its technical guidance on the COVID-19 vaccine is the issue of race discrimination. 

According to one recent study, 57% of African Americans say that they definitely or probably will not get the COVID-19 vaccine. Many point to their distrust of the federal government fueled by decades of medical studies on Black people, including the Tuskegee Experiment, which left hundreds of Black men untreated for syphilis between 1932 and 1972.

If you are going to adopt a mandatory vaccination policy for your workplace (which the EEOC says you can do, subject to reasonable accommodation exceptions under the ADA for medical issues and Title VII for sincerely held religious beliefs or observances), then you must account for the possibility of that policy having a disparate impact based on race. Otherwise, you might be setting yourself up for a potential race discrimination lawsuit.

* Photo by Markus Winkler on Unsplash

Diversity training is the opposite of “anti-American"

Late last week, Russell Vought, the Director of the Office of Management and Budget, issued a memo directing that from this point forward, the federal government will spend zero federal dollars for diversity training for its employees. Why? Because President Trump has concluded that diversity training is "divisive, anti-American propaganda."

BLM vs. MAGA at work

Depending on your political perspective, Goodyear is either being praised or criticized after this slide from diversity training at its Topeka, Kansas, plant went viral.

BLM or LGBT messages on clothing okay; MAGA, Blue Lives Matter, All Lives Matter, or other political symbols not okay.

PLEASE, I’m freaking begging you, DO NOT use social media to determine applicants’ race and gender

Almost as long as social media has existed, employers have searched social media to dig up dirt on prospective employees. There is nothing illegal about these searches … provided you don’t use the information unlawfully. For example, to discriminate on the basis of a protected class.

If Lisa McCarrick, a former Amazon manager, wins her lawsuit against the online retailer, Amazon is going to learn this lesson the hard way.

What does it mean to be "similarly situated" for purposes of proving discrimination?

The Ohio Department of Public Safety fired Morris Johnson, an African American state trooper, after he sexually harassed multiple women while on duty. He claimed that his termination was because of his race, and pointed to David Johnson, a White trooper, who he claimed committed similar harassment but was not fired.

“Hairstyle discrimination” laws: a solution in search of a problem

I fully embrace the irony of a local news broadcast holding me out as the expert on hair discrimination. 👨🏻‍🦲

Irony notwithstanding, here I am on last night’s 6 o’clock news discussing why we don’t need to ban workplace hairstyle discrimination. (Big thank you to WEWS’s Mike Brookbank for reaching out and for the interview.)

When it comes to racial preference, the customer is never right

An Illinois Buffalo Wild Wings has fired all employees involved in an incident in which staff acceded to the request of a Caucasian “regular” to relocate a group of African-American diners to a different table. The reason—he “didn’t want to sit near black people.”

NBC Chicago has the details.

Is this the worst defense ever to a discrimination claim?

Litigation is painful. It takes a lot of time, costs a lot of money, and has lots of variables that you just can’t control. Especially when the client goes off the rails and says something so ludicrous that you might as well just pack it in and cut a check.

As an example, I offer Evans v. Canal Street Brewing. It’s a race discrimination currently pending in federal court in Detroit. According to the Detroit Metro Times, the plaintiff, who is African-American, alleges “a racist internal corporate culture,” including the repeated used of the “N word”, and  management naming its printer the “white guy printer” and  the printer for lower-tier employees the “black guy printer.”

The employer’s defense? The restaurant’s general manager, Dominic Ryan, claims that he did not know Evans was black.

New EEOC case is a not-so-subtle reminder that we still have a lot of work to do to improve race relations

The allegations in this case—which the EEOC just filed against a Louisiana river transporter—remind us that while race relations have improved over the past several decades, they are far from perfect and we remain a nation with a lot of work to do.

Why “ban the box” doesn’t work for employers or employees

Listen this clip from Ear Hustle (a podcast about “the daily realities of life inside prison shared by those living it, and stories from the outside, post-incarceration”), and then let’s chat about “ban the box.”

There isn’t a “magic number” of racial or ethnic insults an employee must prove to establish a hostile work environment

Jamie Ortiz (of Puerto Rican descent) worked for the Broward County, Florida, School Board in various capacities for nearly 20 years, including, from 2009 through 2017, as an auto mechanic in the district’s garage under the supervision of Michael Kriegel.

According to the testimony of both Ortiz and many of his co-workers, Kriegel had some issues with Puerto Ricans and other Hispanics, which he expressed to anyone who would listen, including Ortiz, on a daily basis.

There’s no such thing as “reverse” discrimination—it’s all just discrimination

According to the New York Post, a Caucasian 20-year veteran attorney for the Legal Aid Society is suing her former employer for race discrimination. Among other issues in her lawsuit, she claims that she was denied a lateral move “because of ‘diversity considerations.’”

Do you know that some courts impose a different, higher legal standard for discrimination against white employees than for discrimination against African-American employees?

What’s a hostile work environment? You’ll know it when you see it.

“I know it when I see it.” These are the famous words of Justice Potter Stewart defining legal obscenity in his concurring opinion in Jacobellis v. Ohio (1964).

I feel the same way about a hostile work environment. For a hostile work environment to be actionable, it must (among other factors) be objectivity hostile. What does this mean? It’s hard to define, but I know it when I see it.