By Eric B. Meyer
What if I told you that a female black employee was called “monkey” and “nappy head Raggedy Ann” at work?
What if I then told you that the employee subsequently sued in New Jersey state court; quite possibly the most plaintiff-friendly jurisdiction in the U.S. — next to California?
And guess what? She lost. Oh my!
What the heck happened and what can employers learn from this recent decision? Find out after the jump…
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Alleged racial slurs at work
According to the facts of Shaw v. Fedex Corporation, the plaintiff, who is black, alleged that a black co-worker directed the comments listed above at her. According to the court’s opinion, the plaintiff considered them to be “racial slurs.”
[Let's clear about this: "monkey" and "nappy head Raggedy Ann" are undoubtedly racial slurs and have no place in the workplace. Period.]
However, the facts of the case also confirmed a very mercurial relationship between the plaintiff and the co-worker. That is, amidst the racial slurs, the two co-workers interacted socially in and out of the office for many years. The plaintiff even went to the co-worker’s home for a housewarming party.
The facts further suggested that the plaintiff could dish out the racially-charged insults to the co-worker as well as she could receive them. Plus, when the employer was made aware of any alleged exchanges between the plaintiff and her co-worker, it promptly investigated and disciplined.
No evidence that employer approved slurs
All of this added up to summary judgment for the employer on the plaintiff’s hostile work environment claim a dismissal of the complaint:
Hicks was plaintiff’s co-worker, with no power to alter the terms of employment or the workplace. She was also a long-time friend, although intermittently a bad-tempered and hostile one, with whom plaintiff regularly socialized in and out of the workplace during the time she alleged that the workplace environment was hostile due to Hicks’ behavior. While the term “nappy head Raggedy Ann” can be viewed as a racist insult, during the same argument that Hicks uttered those words, plaintiff herself made insulting and racially insensitive remarks.
More importantly, plaintiff has not produced any evidence of the employer adopting or approving Hicks’ statements that plaintiff felt were racial slurs; indeed, Hicks was swiftly disciplined for her aggressive and insulting behavior. Viewing the totality of the evidence in the light most favorable to plaintiff, we are convinced that no rational fact-finder could conclude, in the context of plaintiff’s and Hicks’ ongoing volatile personal relationship and management’s swift investigation and discipline of both parties, that Hicks’ objectionable statements were so pervasive or severe that a reasonable African-American would believe that the conditions of employment had been altered and that the working environment was racially hostile or abusive.”
Again, without condoning any of the slurs that were alleged to have been made in this case, the facts here suggest to me that we have an opportunistic plaintiff.
This is why it is so important when conducting anti-harassment training to re-enforce that even workplace friends should not engage in behavior that a reasonable person might otherwise find discriminatory or sexually harassing. Because you never know when an employee who was not offended at the time the comments were made may change his/her mind following a termination of employment.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.