I REALLY thought people knew better not to advertise jobs “for whites”

Cynet Systems, an IT and engineering staffing company, had a viral mess on its hands over the weekend, after it posted a job that asked for candidates “Preferably Caucasian.”

Harassment need not be "hellish" to be actionable

Gates v. Board of Education of the City of Chicago (7th Cir. 2/20/19) asks a question that we see time and again in harassment cases—how bad does does the conduct have to be to support a harassment claim. The answer is bad enough, but not so bad so as to be classified as "hellish."

How many n-bombs does it take to create a hostile work environment?

Smelter v. Southern Home Care Services (11th Cir. 9/24/18) answers the question, "How many n-bombs does it take to create an unlawful hostile work environment?"

So as not to bury the lede, the answer is one.

Despite what one court held, workplace discrimination laws DO protect employees from non-employees

Pop quiz: Can an employer ignore harassment or other discriminatory behavior directed at employees by non-employees?

If your answer is "yes," you'd be in agreement with the court in Shaw v. Access Ohio (Ohio Ct. App. 7/27/18).

You'd also be dead wrong.

Netflix demonstrates it has zero-tolerance for the N-word

Netflix has fired one of its top executives for his use of the "n-word" at work.

 

According to The Hollywood Reporter, sources say that Jonathan Friedland, Netflix's (now former) chief communications officer allegedly used the n-word in a meeting with other Netflix staffers, in which they were discussing the use of sensitive words in public relations communications. Friedland then allegedly exacerbated the problem by again using that word during a meeting with two of the company's African-American HR employees counseling him on the original incident.

Who is Otis Burke?

By now you’ve almost certainly heard about ABC’s cancellation of Roseanne, after Roseanne Barr posted a racist tweet about Valerie Jarrett, President Obama’s former senior advisor.

Today, a lot of internet ink will be spilled about ABC’s swift and decisive reaction to cut the head off any potential controversy, how private-sector employees lack free speech rights at work, and why Roseanne’s after-the-fact excuse that she was Ambien-tweeting is irrelevant.

I’d like to come at this from a different angle—all of the individuals who are now unemployed because Roseanne Barr said something racist and offensive and stupid.

Including Otis Burke.

Hair discrimination; not a thing

Give me a head with hair, long beautiful hair
Shining, gleaming, steaming, flaxen, waxen
Give me down to there hair, shoulder length or longer
Here, baby, there, momma, everywhere, daddy, daddy
Hair, hair, hair, hair, hair, hair, hair, hair
Flow it, show it, long as God can grow it, my hair

– “Hair”

Friday’s tongue in check post about the beauty of baldness got me thinking about hair and employment law.

Or, more to the point, can an employer run afoul of discrimination laws by making an employment decision based on one’s hairstyle?

Tattoos at work: more acceptance, yet still some legal risk

By ABC TV [Public domain],
via Wikimedia Commons

I am not a tattoo person. Yet, a whole lot of people are. And the numbers are increasing.

In fact, according to one recent survey, 3 in 10 Americans have at least one tattoo, up 50% in just four years. And, the younger you are, the more likely you are to sport a tattoo: 47% of millennials have a tattoo, as compared to 36% of gen Xers and only 13% of baby boomers.

What does it mean to be religious?

Lately, I’ve been thinking a lot about religion. Or, rather, what it means to be religious.

I am not religious. Or at least not in the organized sense.

This does not mean that I am an atheist, or a pagan, or a heathen, or whatever other aspersion you’d like to cast upon me.

It just means that I do not believe I need a building and a structure upon which to ascribe my beliefs.

Amid all of the sexual harassment concerns, let us not forget that other types of harassment exist

So much of the news lately has focused on sexual harassment, that it’s easy for one to forget that other types of harassment also exist.

For example, racial harassment.

Since we are but a week away from Christmas, I thought it appropriate to use a holiday-time example to illustrate.

When you discover that you employ a Nazi

In the wake of Friday and Saturday’s horrific, evil events in Charlottesville, the twitter account YesYoureRacist posted many riot photos and identified many of the rioters. And, as a result, some have lost their jobs.

UPDATE: Cole White, the first person I exposed, no longer has a job 💁‍♂️ #GoodNightColeWhite #ExposeTheAltRight #Charlottesville pic.twitter.com/sqxSXboKw6

— Yes, You're Racist (@YesYoureRacist) August 13, 2017

Question: Does one participating in a Nazi rally enjoy any job protections from said participation?

Apparently the labor rights of strikers trump the non-harassment rights of employees

There exists only one workplace environment in which a white employee can keep his job after yelling the following at a group of African-American employees.

• “Hey, did you bring enough KFC for everyone?” 
• “Go back to Africa, you bunch of f***ing losers.”
• “Hey anybody smell that? I smell fried chicken and watermelon.”

A gold star for you if you answered a picket line, when the comments are made by striking workers and are directed at a group of replacements crossing said picket line. Or at least this is the majority finding of the 8th Circuit Court of Appeals in Cooper Tire & Rubber Co. v. NLRB [pdf].

A reminder that any employee can sue you at any time

Another obvious lesson

Today’s lesson may seem obvious, but it is one worth repeating: any employee, no matter the on-the-job misconduct, can sue you. Filing a lawsuit is one thing, succeeding on that lawsuit is an entirely different animal.

Case in point: Robinson v. Klosterman Baking Co. (S.D. Ohio 7/5/17).

Federal judge takes NLRB to task for rules that protect racist and sexist workplace misconduct

Of all of the decisions the NLRB has handed down in the past eight years, those that let striking employees lob racists and sexist bombs at replacement workers crossing picket lines are the most offensive to me.

Consolidated Communications v. NLRB (D.C. Cir. 9/13/16) is one such case.

More compelling than the decision, however, is the concurring opinion written by Judge Patricia Millett, in which she calls on the NLRB to carry out its mission to protect the rights of all employees, not just those who happen to be walking a picket line. How can a picket line magically convert misconduct that is “illegal in every other corner of the workplace” into the “unpleasantries that are just part and parcel of the contentious environment and heated language that ordinarily accompany strike activity,” she asks? 

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.

11th circuit decision on dreadlocks and race asks big questions on the meaning of discrimination

In EEOC v. Catastrophe Management Solutions [pdf], the EEOC asked the 11th Circuit to determine whether banning an African-American employee from wearing dreadlocks constitutes race discrimination.

In a lengthy decision that discusses the very concept of race, the court answered the question “no”.

Court permits use of employee’s own racist Facebook posts in race-discrimination case

I read with interest this morning’s post on Eric Meyer’s Employer Handbook Blog, entitled, Court says employee’s Facebook page on race stereotypes is fair game at trial. The post discusses a recent federal court decision which permitted an employer to impeach at trial a race-discrimination plaintiff with her own racial Facebook posts.

Why #BlackLivesMatter should matter to employers

Earlier this week, an African-American Nashville police officer was decommissioned for changing his Facebook profile photo to that of Black Panther National Chairman Bobby Seale and Huey Newton holding a Colt .45 and a shotgun. The photo became iconic in the 1960 for the Black Power movement. Elsewhere in Tennessee, the Memphis police department suspended two police officers for Snapchatting a picture of a white person pointing a gun at a cartoon image of a black child running through a home.

Then, Cleveland Browns running back Isaiah Crowell Instagrammed this image, with the caption, “Mood: They give polices all type of weapons and they continuously choose to kill us...#Weak.”

Are ban-the-box laws actually causing more racial discrimination?

I read with great interest an article on vox.com, entitled, “Ban the box” might just replace one kind of discrimination with another. The article discusses two recent studies, one by The Brookings Institution and the other by the University of Chicago, both of which concluded that ban-the-box laws have the unintended consequence of causing more discrimination against minorities, not less:

No matter what the producers of #Hamilton tell you, race is never a BFOQ

True confession time. I am not a fan of Hamilton. I don’t get it. Never have, never will. I will probably go to my grave having never seen what people tell me is the greatest thing to come to Broadway in the last few decades. And I’m perfectly okay with that.

I say this as prologue to today’s thought, which discusses this ad (h/t HuffPost), in which the producers of the Broadway seek “NON-WHITE men and women, ages 20s to 30s, for Broadway and upcoming Tours!”