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.

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.