HR News & Trends, Legal Issues

A Workplace With N-Words, Confederate Flags, But No Discrimination

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By Eric B. Meyer

Over the weekend, I read this opinion (Adams v. Austal) in a race-discrimination with facts so egregious, they’d make David Duke blush.

Let me set the scene for you: This is a workplace where, allegedly, several of the white employees displayed Confederate flag paraphernalia. I’ll spare you a verbatim review of the racial graffiti and epithets — you can view it here — but, it was pretty darn bad. And what about multiple nooses in the workplace — eight (8) in total.

All that hate, but no discrimination

There is no question that nooses, n-words, graffiti and Confederate flags are symbols of racial animus and violence. But that was not enough to convince the 11th U.S. Circuit Court of Appeals, based in Atlanta, to reinstate several of the race-discrimination claims that the lower court had dismissed.

Dismissed? Why? Because many of the plaintiffs lacked firsthand knowledge of the bad stuff.

As the 11th Circuit Court of Appeals reasoned: “An employee alleging a hostile work environment cannot complain about conduct of which he was oblivious for the purpose of proving that his work environment was objectively hostile.

In other words, an employee cannot rely on evidence of racial harassment of which he is not personally aware to prove that his work environment was objectively hostile.

And while some of the plaintiffs were able to show that they were personally exposed to acts of race discrimination, the ones who relied on “me too” evidence about those incidents had their cases dismissed.

Employer wins.

Employer takeaway

There’s not, really.

Because, well, the employer probably spent hundreds of thousands of dollars defending these legal actions (without factoring in the cost of paying judgments). So, for the love of God, if your workplace at all resembles the allegations presented here…

Well, you’re probably not reading this blog anyway.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

Eric B. Meyer is a partner in the Labor and Employment Group of the Philadelphia-based law firm of Dilworth Paxson LLP . He dedicates his practice to litigating and assisting employers on labor and employment issues affecting the workplace, including collective bargaining, discrimination, employee handbook policies, enforcement of restrictive covenants, and trade secret protection. Eric also serves as a volunteer mediator for the United States Equal Employment Opportunity Commission. Contact him at emeyer@dilworthlaw.com .
  • hobonc

    I don’t care who used the Confederate flag for whatever purpose, it is a part of Southern heritage and as per our 1st Amendment rights we have the right to display it. A private workplace may ban it if they choose but that is their choice.