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

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, readNBA 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.

Latest News

Humana Announces Health Care Provider Initiative to Help Ease Financial and Administrative Stress During Coronavirus Pandemic

Originally posted on Humana.com Leading health and well-being company Humana Inc., announced actions designed to help provide financial and administrative relief for the health care provider community facing unprecedented strain during the coronavirus pandemic. First, Humana is implementing simplified and expedited claims processing, in order to get reimbursement payments to providers…

Georgia Power Invites Georgians to Say ‘Thank You’ to Employees During Thank a Lineman Month

Originally published on southerncompany.com. For the eighth year in a row, Georgia Power and other electric utilities in Georgia are celebrating and thanking utility workers across the state. The daily work done by linemen in Georgia’s communities is always recognized, but their work is especially pronounced during today’s challenges from the escalating COVID-19 pandemic…

Mastercard: Learning @ Home with Girls4Tech™ Connect

Originally published on newsroom.mastercard.com. Mastercard Provides Free Online STEM Lessons to Children, Teachers and Parents Mastercard extended access to its signature STEM curriculum, Girls4Tech™, through a suite of new online, creative educational resources. The program has been designed to help parents and teachers engage and inspire kids, ages 8-12. Through…

ADP Preparedness Toolkit

Originally posted on ADP LinkedIn Find FAQs, checklists, webcasts, and the resources to help you protect and manage your workforce in the ADP Coronavirus Disease (COVID-19) Employer Preparedness Toolkit: https://bit.ly/2xuM2jW

feinstein, northwell

Northwell Health’s Feinstein Institutes Teams Up with Sanofi, Regeneron Pharmaceuticals, Gilead Sciences to Test COVID-19 Treatments

The research arm of Northwell Health (No. 2 on DiversityInc’s 2019 Top Hospitals & Health Systems), the Feinstein Institutes for Medical Research, is partnering with Gilead Sciences, Regeneron Pharmaceuticals and Sanofi (No. 31 on DiversityInc’s 2019 Top 50 Companies for Diversity) to identify treatments for people hospitalized with moderate to severe…

EY Named a Leader in Managed Security Services and Professional Security Services in Asia-Pacific in Two Studies by IDC

Originally posted on EY.com EY is a leader in Asia-Pacific professional security services among 17 vendors EY has been recognized by IDC as a leader in two of its studies: IDC MarketScape: Asia/Pacific Managed Security Services 2020 Vendor Assessment, and IDC MarketScape: Asia/Pacific Professional Security Services – Advisory, Assessment, and Awareness 2020…