By Eric B. Meyer
The thing about this law-blogging gig, other than the money, power and women, of course, is the pride of being first to post about a crazy new case.
Last week, I missed out on the nude sunbather who sued an elementary school-employer for retaliation. Well, Jon Hyman at the Ohio Employer’s Law Blog, I see your nude sunbather and raise you two white guys and a Native American who dressed as Klansmen at work, allowed themselves to be photographed, and then sued for race discrimination.
Yes, this really happened.
Employees dress as Klansmen, get fired
Three employees dress as KKK members, get photographed, get fired.
These morons stood in a row with loose, white, robe-like suits and pointed white hoods, holding makeshift wooden crosses, while a co-worker snapped a picture on his cell phone.
Hold on a sec, folks, while I check to see if the employer’s motion for summary judgment includes a picture. (Five bucks says it does).
Side note: Did you know that these plaintiffs were represented by counsel? I’m talking actual lawyers. Plural. There were two lawyers representing the three plaintiffs.
Now, I won’t name names, but can you imagine the thought process behind accepting this representation?
Should photographer have been fired too?
The three plaintiffs claimed that they weren’t racist. But rather, the photographer, a black co-worker, “had engineered the KKK photograph as a joke.”
Oh, you don’t say? I’ll take your case!
No race discrimination — even though the black photographer wasn’t fired too.
In responding to the employer’s motion for summary judgment, while conceding that the plaintiffs should have been disciplined for being photographed in what could be described as the most symbolically violent and racially intimidating outfits, the plaintiffs argued that the black photographer “was the instigator; they were hapless participants; he equally culpable.”
Good lord is that stupid! Indeed, the court (opinion here, in Barker v. The Boeing Company) noted some crucial differences between the photographer and the plaintiffs:
Accepting the plaintiffs’ construction of the facts for purposes of this motion, the argument ignores several salient differences. Kenta Smith reported an incident of racial harassment. The plaintiffs did not – they were, instead, the object of the report. The plaintiffs appeared in a photograph dressed as the KKK. Kenta Smith did not.”
Ultimately, the Court concluded that no reasonable jury could find that the terminations evidenced pretext; namely, that the employer fired the plaintiffs because of animus toward Caucasians and Native Americans.
Employer takeaways
There are two (2) employer takeaways here:
- Kudos to Boeing for not settling with these plaintiffs. My guess is that Boeing could have paid a lot less to the plaintiffs to settle this case than to litigate it. Instead, it did the right thing here.
- How many of you HR pros, managers, and legal types, if shown a picture of these knuckleheads, would do anything but immediately fire them? Right. Unless you operate the Ku Klux Klan, don’t ever tolerate crap like this in your workplace. Ever. No exceptions.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.