When an Employee Tosses Banana Peels and Claims Discrimination

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Apr 8, 2015

By Eric B. Meyer

Where do I find these cases I write about, you ask? I ain’t telling.

But seriously, this case (Ennis v. Del. Transit. Corp.) isn’t so much about the particular facts …

  • White employee tosses banana peels at work.
  • Black employees complain of racism.
  • Investigation ensues.
  • White employee is forced to resign,

… as it is about making sure that all involved know why an employee is being fired, and can articulate those reasons consistently.

Is it a pretext for discrimination?

You see, a plaintiff alleging discrimination (on the basis of any protected class — including white male), generally needs to show that the employer’s reason for whatever adverse employment action it took is a mere pretext for discrimination.

And how does a plaintiff do this? By pointing to weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s reasons for taking whatever action it did.

And how did the white banana-peel-tossing plaintiff do this here?

  • One of the employees who complained to management that tossing banana peels was a racist gesture, testified that he never called the plaintiff out as a racist. Rather, he told the plaintiff that the discarded banana peels were an eyesore.
  • Another employee testified that she thought that the incident was racist because the employee who complained thought it was racist. But, that first employee told the plaintiff that the peels were an eyesore, so…
  • Then you have two people identified as the decision makers, one of whom testified that he was not the decision maker. Rather, someone else was the decision maker.
  • And, someone else adamantly testified during his deposition that he opposed plaintiff’s termination.
  • Finally, there was the mixed testimony about whether the plaintiff’s race played any role in his termination.

Employer takeaway?

Hey readers, employment decisions don’t have to be unanimous. Just make sure that everyone involved knows their role, understands the reason(s) for the decision, and can articulate them clearly and consistently.

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