Is It Discrimination If You Get Fired For Grabbing a Co-Worker’s Bottom?

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Jan 23, 2014

By Eric B. Meyer

My ears are burning…”

No, not you, Bill Clinton.

And not you either, Homer Simpson.

I’m talking about this guy who worked as an EMT (emergency medical technician) in Pittsburgh. He was accused of grabbing his co-worker by the buttocks and placing his fingers very close to her private area.

(I’d be a little more colorful in my commentary, but I already used up my gratuitous jab with the Clinton bit.)

So, as you can imagine, the cheeky EMT — sorry, couldn’t resist — who is black, was fired. What you may not believe, however, is that this guy claimed that his former employer’s move was racist.

Racist, you say? Maybe…

To prevail on a claim of disparate treatment, a plaintiff must show that his employer treated other similarly-situated employees outside of his protected class more favorably.

The plaintiff here alleged that his employer did not fire another white EMT who allegedly struck a patient. So, the question becomes this: is hitting a patient basically the same thing as grabbing a handful of a co-worker’s backside (allegedly).

According to a Pennsylvania federal court in this opinion (Mitchell v. City of Pittsburgh), they’re close enough. To use the court’s words, “grabbing a co-worker’s buttocks” and “striking a patient” are of “comparable seriousness.”

And since the white employee who struck the patient was merely suspended (while the level of his offense could have warranted termination), while the black employee, who supposedly got a handful of tush, was fired, that was enough for the judge to allow the black employee’s discrimination case to proceed to a jury.

Takeaway for employers

The takeaway here is that while you may be inclined to give employees who misbehave at work second chances, there arises a level of misbehavior — I’m thinking aggressive physical contact and sexual assault qualify — where you just fire the employee and move on.

Otherwise, you may end up at trial defending a discrimination case.

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

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