By: Bob Cooper
Consider the following. A client calls with an urgent problem: A white employee jokingly made a racial comment to an African-American employee, whom he thought was his friend and whom he wrongly assumed would not be offended. The comment was clearly overheard by several other employees. Understandably, the African-American employee was extremely offended and threatened the white employee verbally and physically, but was restrained. The African-American employee subsequently demands that the white employee be immediately terminated from his employment.
When racial strife occurs in the workplace among employees, employers and their HR professionals often feel compelled to take immediate and sometimes drastic measures, including termination, even on the basis of one comment by an employee taken perhaps out of context. While this approach is certainly understandable from an emotional perspective, it is not always the required choice of action. Employers and HR professionals must ask themselves: What does the law under Title VII really require of us in this situation? Does the situation above qualify as harassment?
Many would be surprised to learn that the standard for workplace harassment is a fairly high one and that employers confronted with the situation discussed above or one like it may have more options than they believe.
The U.S. Supreme Court has repeatedly pointed out that while Title VII prohibits the creation of a hostile work environment through harassment when based upon an individual’s race, color, religion, sex or national origin, the law does not impose a “general civility code.”[1] The discrimination and harassment laws do not reach “the ordinary tribulations of the workplace,” such as, for example, sporadic use of abusive language or generally boorish conduct.[2] To be actionable, “behavior need not drive the victim from his or her job, but it must be of such severity or pervasiveness as to pollute the working environment, thereby alter[ing] the conditions of the victim’s employment.”[3] Whether an environment is “hostile” and “abusive” can be determined “only by looking at all of the circumstances [including] the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s performance.”[4]
The employer’s initial impulse in the above scenario might be to fire the employee who admittedly uttered the racial slur. But employment terminations, while sometimes straightforward, are often a “bank-shot in the corner pocket,” and not at all one-dimensional. The legal issues in these scenarios are paramount, but employers must weigh all of the factors that may affect their workplace down the road.
First, the legal issue: In the above scenario, the person who uttered the racial slur, mistakenly thinking he knew his friend and co-worker well enough to do so, almost certainly did not break the law. It was certainly bad judgment, but as we have seen, one offensive utterance with no intent to discriminate does not violate the discrimination laws. However, when reviewing the scenario above, the offended party who threatened violence most likely has broken the law.
Second, it is important for employers to weigh risks associated with certain actions. For instance, what is the likelihood that the terminated employee could come back at the company with a wrongful termination lawsuit? In this case, not likely, especially if both employees were hired on an at-will basis. But certainly that is an issue to consider in any termination where fairness is an issue. Although a zero tolerance policy toward racial or other ill-motivated harassment is a good idea, the company in this situation was not under any legal compunction to fire the employee who made the isolated remark. Nevertheless, there is more to think about.
Third, the employer must consider decisions independently of employees’ demands. In this situation, the offended employee insisted that his co-worker’s employment be terminated immediately. There is certainly a temptation to give into such a demand, to “buy the company’s peace” with respect to this employee. However, this effort at appeasement of an employee’s demand seldom appeases, but instead could embolden the employee with a sense of his own influence. Although it may seem self-evident, an employer should always make decisions regarding adverse employment actions independently of employees’ demands, except with respect to separating employees in a harassment scenario.
Nevertheless, although the employee would most likely not be found to have legally created a hostile work environment, his colossally bad judgment in misreading his co-worker and making such an offensive comment in front of other employees likely merits his termination.
Finally, consideration must be given of what to do with the alleged “victim” who threatened his co-worker with violence. He should, at a minimum, be severely reprimanded, and if any prior instances of violence or threatened violence had existed, the employer should terminate his employment immediately. Regardless of how offensive any comment may have been, violence in the workplace is never appropriate or permissible and is legally far more significant than a “mere offensive utterance.” Violence or threatened violence are far too risky for any employer to tolerate, as the repercussions can far exceed “offending” a co-worker.
And there you have it, a bank-shot in the corner pocket.
[1] Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75, 81, 118 S. Ct. 998, 140 L. Ed.2d 201 (1998); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64-65, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986)
[2] B. Linderman & D. Kadur, Sexual Harassment in Employment Law 175(1992).
[3] Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22, 11 S. Ct. 367, 126 L. Ed. 2d 295 (1993)
[4] Id.
Robert Cooper is the Co-Chair of the Labor & Employment Group and a shareholder at Buchalter Nemer. He has more than 25 years of experience as a management-side labor and employment trial lawyer and commercial business litigator including numerous jury and bench trials, binding arbitrations, administrative law matters and defense of class action lawsuits.
