Racial Discrimination: Black Employee Fired After Being Called the N-Word

See how this employee's firing was justified, and read other cases on racial discrimination, religion, disability and FMLA.

 


Racial Discrimination

Racial names do not justify slapping customer. A white customer suspected of shoplifting was escorted to a security area for questioning. The customer's white friend then barged into the area, cursing at the store employees, one of whom was Black. She used the N-word toward the Black store employee, who reacted by slapping the verbally abusive customer in the face. The police were called and both customers were arrested. The store then fired the employee for having slapped the customer, in violation of its no-violence policy and no-physical-contact-with-customers policy. The fired employee filed a Title VII race-discrimination case, alleging that Kmart was promoting a racially hostile environment and "ratifying hate speech" by firing the victim of harassment. The court ruled against the employee. The customer's behavior was clearly harassing and improper. However, the store took prompt action to have the police remove the offender. The company had policies on how to deal with customers for these situations and how to raise complaints without escalating a situation. Slapping a customer was against policy and not warranted by a verbal situation. The employee's escalation to the physical level was unwarranted and justified discharge. Lee v. Kmart Corp. (D. Minn., 2012).  For more on the discrimination and the N-word, read NBA Star John Amaechi: Hate Speech Goes Beyond N- and F-Words.

Hostile supervisor loses discharge case. A Cuban-born manager filed national-origin and race-discrimination cases under Title VII and 42 U.S. Code §1981 after he was discharged. The evidence showed that the manager's employees filed complaints about his supervisory behaviors. The evidence was that he yelled and swore at employees, used a "brutal and belittling manner," demeaned them as they were dealing with customers, and generally "created a fearful environment." When human resources met with him about these concerns, the manager refused to acknowledge any of the issues and expressed that he would not change his management style. He was fired as a result. The court found valid reason for the discharge and no evidence of any similarly situated non-Latino manager. The only other managers who were cautioned about rough supervisory behaviors had immediately recognized issues, expressed a sincere interest in change and corrected the behaviors, instead of digging in their heels and refusing to acknowledge the concerns. The manager's case was dismissed. Martinez v. W.W. Granger, Inc. (8th Cir., 2012).

Religious Discrimination

Proselytizing judge loses case. A Michigan State Court administrator filed a complaint about the chief district judge's use of the courtroom to proselytize. She alleged that he used his judicial position and authority to promote his particular religious beliefs, in violation of the Constitution. The judge then fired the administrator. She sued. The federal court jury awarded $734,000 in economic, compensatory and punitive damages. The appellate court confirmed the verdict, plus attorney fees. It found that the administrator's complaint was clearly constitutionally protected; it addressed a matter of serious public concern. The chief district judge's actions were clearly retaliatory against a citizen's right to freely speak out against a government official's alleged violations of the Constitution. Pucci v. Somers (E.D. Mich., 2012).

Disability Discrimination

Essential function can depend on number of other employees to bear the burden. A nurse suffered a stroke. She rehabilitated enough to return to work, but not full time. She could work limited hours with no on-call duties. This meant the other nurses had to put in extra duty hours and pull more frequent on-call nights, weekends and holidays. The nurse could not provide a return-to-full-time estimate and was ultimately terminated for inability to meet the essential scheduling requirements. She filed an ADA case and lost. There was no duty to convert a full-time job to part time. The court ruled that "A job function may be considered essential by virtue of the limited number of employees available to perform the work." The ADA does not require accommodation by shifting essential functions and extra burden onto others. Azzam v. Baptist Healthcare Affiliates, Inc. (W.D. KY, 2012).

TSA immune from most employment suits. A diabetic Transportation Security Administration employee had a foot infection, took leave and returned with a fitness-for-all-duties doctor's certification. His TSA supervisor refused to let him return because he "was too much of a liability." He then, with EEOC support, sued under the Rehabilitation Act. The court dismissed the case. It ruled that the legislation creating TSA exempted the agency from liability under the Rehabilitation Act, FLSA, ADEA and several other employment laws. The court made a broad interpretation of the general clause in the Act giving TSA the power to set and enforce its employment standards "notwithstanding any other provision of law." National security overrides all other interests. Field v. Napolitano (1st Cir., 2011).

Family and Medical Leave Act

Double damages for failure to give proper notice of change in FMLA policy. A company had an FMLA policy, providing 12 weeks per calendar year. So each January 1, there was a fresh 12 weeks available. It then changed to a "rolling" method, giving 12 weeks' leave in a 12-month period measured back from the current usage. It did not send notice to employees about this change. In April, a 36-year employee requested and was granted FMLA. He had taken FMLA the prior calendar year as well. The company terminated the employment a month prior to his expected return because it now counted the prior year's FMLA (pre-January 1) as part of the use in the past rolling 12 months. The effect was not only loss of a job; it also cut him off from retirement benefits he would have had in just two more years. In the FMLA suit, the court found bad faith on the part of the employer. It could not hold employees to a new policy that had not been communicated to them. (The FMLA generally requires a 60-day written notice of policy changes before they become effective.) The company's actions were like springing a trap door without warning. The bad-faith interference with FMLA rights warranted double damages, an adjustment of the discharge date by two years to create eligibility for retirement benefits, and attorney fees, for a total of over $400,000. Thom v. American Standard, Inc. (6th Cir., 2012).

Click here to read more court cases on diversity legal issues.

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

 

CNN's Don Lemon Calls Out Trump for Silence on Waffle House Shooting

Trump has not talked or tweeted about the people of color killed or the bravery of a Black man.

In the early hours of Sunday morning at a Waffle House near Nashville, a white, male domestic terrorist killed four people of color and was stopped by a Black man from killing many more. Apparently that's the type of scenario President Donald Trump and his administration choose to ignore, and Don Lemon blasted Trump for his silence.

Read More Show Less

Golf Club Calls Police on Black Women Members for Allegedly Playing Too Slow

The five women, one a local NAACP president, say it's a clear case of racial and gender discrimination.

Myneca Ojo / FACEBOOK

Five Black women, members of the Grandview Golf Club in Braddock, the oldest public golf course in York County, Pa., decided to meet on Saturday for a round of golf. The outing ended with the club co-owner, who is white, calling the police on the only Black, female players on the course because they allegedly played too slow and did not want to cancel their membership and leave.

Read More Show Less

Waffle House Shooter: White Affirmative Action Strikes Again

Blacks are disproportionately killed, while guns are given back to the Waffle House shooter, despite concerns about his mental health issues and previous violent threats.

Travis Reinking / REUTERS

The Waffle House shooter had his guns taken away and given back to him, and the question is whether or not that would've happened if Travis Reinking was Black. His father, who ultimately was given the guns back by the police, promised to keep the weapons secure and out of his son's possession, according to Southern California Public Radio's report. Both the father and the police were aware of Reinking's history of mental instability, but chose to give Reinking another chance.

Read More Show Less

Syracuse University Expels Fraternity over 'Racist, Sexist' Video

"The racist, anti-Semitic, homophobic, ableist and sexist video was part of a Theta Tau sponsored event," Chancellor Kent Syverud said.

SCREENGRAB VIA YOUTUBE, THE DAILY ORANGE

(Reuters) — Syracuse University has permanently expelled a fraternity after a video surfaced this week showing its members using racist and offensive terms in a skit the chapter said was satirical, a school official said on Saturday.

Read More Show Less

Religious Faith Linked to Suicidal Behavior in LGBQ Adults

Although religiosity is generally tied to reduced suicide risk, the opposite may be true for some young lesbian, gay and questioning adults.

(Reuters ) — Although religiosity is generally tied to reduced suicide risk, the opposite may be true for some young lesbian, gay and questioning adults, researchers say.

Read More Show Less

Firefighter Charged for Spitting on Black Toddler, Using the N-word Gets Job Back

It's not surprising as a Black firefighter once sued the Kansas City Fire Department for discrimination.

Terrence Jeremy Skeen, a 15-year veteran of the Kansas City Fire Department who spat on a 3-year-old Black boy and called him the n-word, has got his job back.

Read More Show Less