Dan Filler on the Fourth Circuit's Decision Re Racist Speech in the Workplace

Dan Filler has a truly excellent post on Jordan v. Alternative Resources Corp., which I shamelessly crib here. Future law students should note the civil procedure issues (the case was dismissed under rule 12(b)(6), or failure to state a claim upon which relief can be granted. Thus, the case was dismissed before it could even go to a jury, since no factfinder could possibly find for the plaintiff. Employment discrimination law is a fascinating synthesis of civil procedure, contracts, torts, constitutional law, and remedies. And if this case ruffles your feathers, then do consider taking ED in law school. This case in particular will have consequences for determining what constitutes a hostile work environment, what constitutes adverse retaliatory action for the reporting of Title VII violations, and what is the threshold for a sufficient pleading. A rather scary decision in all respects.

Dan's post:

Full Court Press has a good post on a recent Fourth Circuit decision, Jordan v.
Alternative Resources Corp., in which a divided panel upheld the dismissal of a Title VII race discrimination suit. In particular, the plaintiff argued that he had been fired in retaliation for making a complaint to management about what he perceived as a racially hostile working environment. The post at Full Court Press offers many more details, but the core of the court's holding was that the employee was "unreasonable" in believing that his co-worker's comments created a hostile working environment.

What were these comments that no reasonable African-American man could possibly have seen creating a hostile work environment? While watching a news account of the arrest of the DC snipers, his co-worker exclaimed: "they should put those two black monkeys in a cage with black apes and let the apes fuck them." That according to the dissent. The majority redacted the text a bit, so that the gentlememan only suggested that the apes "f--k" them. In the aftermath of this incident, the plaintiff was told by colleagues that this offending speaker had used similar language in the past.

Two thoughts. First, it was interesting to see the majority turn what was clearly family-unfriendly language into, well, family-barely-friendly text. Apparently, for the majority, the "fuck" aspect of this comment was most offensive. Calling African-Americans monkeys - and thereby calling upon a rich
history of bigotry - was merely being accurate. (No doubt some will argue that the "fuck" was irrelevant to the claim here, since it was grounded on the monkey image. But that is clearly debatable, if only because the term amplified the speakers intensity of hate.) Judge King's dissent was very aggressive in terms of word choice. FIrst, he restated the facts, including the word "fuck." Then, when citing contrary authority, he explicitly noted in parentheticals that those cases involved the use of the term "nigger." We all know that the mere act of uttering this word is powerful and controversial. His point, presumably, was that any assessment of whether such abusive language could be reasonably viewed as creating a hostile environment cannot occur when the majority is perfuming these statements. Racist language must be addressed squarely, because the mere softening of terminology in a recitation of facts serves to retell a false narrative, one that the plaintiff never experienced. (In some ways, the panel's decision to obscure the actual language - characterizing it rather than providing a precise image - brings to mind Eugene Volokh's argument that you can't discuss the cartoons spoofing Mohammed without seeing the precise images that are under discussion.)

Keep in mind that this case isn't about the merits. The question is not whether these statements actually created a hostile environment. It's not about whether the co-worker ever made these statements. It simply about having a day in court to let a factfinder decide these things. The Fourth Circuit concluded that NO reasonable African-American man, having heard these comments in the workplace, could ever have concluded he was experiencing a hostile environment. Thus, the case cannot proceed to trial. That just doesn't seem right to me.

It doesn't seem right to me either.

Update: It seems that the one time I lapse in my daily reading of Workplace Prof Blog, I missed that there is a distinction between the legal issue of retaliation for reporting discrimination and that of a worker's protected activity for which they were improperly dismissed. Paul Secunda makes this clear:

Unlike the case pending before the Supreme Court now, the question is not whether adverse action has been taken against Jordan, but whether he engaged in protected activity. This is the plaintiff's burden in a so-called opposition retaliation case, as opposed to a participation case where the alleged retaliation has occurred because the plaintiff has filed a charge of discrimination with the EEOC or participated in an investigation or other EEOC proceeding.

Courts have found in the past that engaging in boycotts to protest a store's racially discriminatoy hiring and promotion policies is protected activity (Payne), so it is less than clear why reporting an ugly epithet like this employee did, consistent with eradicating racial discrimination and harassment from the workplace, would not qualify.