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Would you fire an employee for using the n-word?

July 11th, 2013  |  Joy Waltemath

I’m not asking whether you agree with the Food Network, or the sponsors who responded to Paula Deen’s acknowledged prior use of the n-word by dismissing her or severing ties with her. I’m asking whether, as an employer, you would have fired one of your employees who used that particular racial slur in the workplace; whether as a law firm, you would have advised your client to fire an employee who did so. What about other discipline: Suspension? Final warning? What would you have done?

I looked at a sampling of recent (within the last six months) cases Employment Law Daily reported involving that particular racial slur to see what employers actually did. Specifically, I looked for cases where disciplinary action (or the lack thereof) for using racial epithets was discussed in the case; that was not always easy to find.

Not terminated, but was owner’s wife. The Northern District of Alabama (Sales v Five Points Temporaries, L.L.C., June 19, 2013) found ample evidence, based on the sheer number of racially charged comments, to support an African-American employee’s claim that she was discharged by a temp agency because she objected to assigning workers according to clients’ racial preferences, The temp agency owner’s wife, a manager with supervisor authority over the employee, regularly called African-Americans, including this employee, the n-word. So did the branch manager/VP of operations; so did the company owner. Perhaps this case is not a fair example, since it was the owner’s wife whose racial slurs were at issue here.

Final warning given, but was retaliation for union activity. Here’s one where the NLRB found (Ozburn-Hessey Logistics, LLC, May 2, 2013) that an employer’s final warning to an employee for allegedly calling a co-worker the n-word during a confrontation was actually retaliation for her pro-union activity. Although the warning supposedly was for violating the employer’s anti-harassment and non-discrimination policy, there was evidence that the employer did not believe that the use of racial slurs merited discipline, since it overlooked similar offensive statements made by a high-level supervisor to subordinate employees.

Not terminated, but complaining employee was. The Northern District of North Carolina found a jury question in whether an African-American employee who was involved in a fracas with a white coworker was terminated unfairly while the other employee was retained. Amidst a backdrop of racially derogatory comments by coworkers and management, including use of the n-word by the white employee who was not terminated, plus threats of physical harm, management’s response was “indifference.” The African-American employee’s complaints were disregarded, and the physical threats characterized as “horseplay.” (Billips v Benco Steel, Inc, April 30, 2013).

Terminated three months later. In April, the D.C. Circuit revived an employee’s race discrimination, hostile work environment, and retaliation claims (on which the lower court had granted summary judgment), one of which involved a vice-president calling him the n-word during a meeting to discuss the employee’s concerns. Here, the vice-president was terminated. Although the employer argued that it promptly corrected the vice president’s behavior by firing him three months after the incident, the court noted that a reasonable jury could find that the three-month delay was not “prompt” (Ayissi-Etoh v Fannie Mae, April 5, 2013).

Final warning given. This case involved a coworker’s use of the n-word that was overheard and not directed at the complaining employee, which was reported immediately; Walmart investigated the same day. The coworker admitted the slur and apologized; Walmart gave the coworker a final warning, coached her, and cautioned her that the next disciplinary level would be termination. Unhappy that her coworker was not fired, the employee called the Walmart hotline to complain. Walmart reopened the investigation but stood by its earlier decision. The Southern District of Alabama found  (Denham v Wal-Mart Stores East, LP, March 26, 2013) that any employee’s use of the n-word was “patently offensive,” but an “isolated utterance on a single occasion,” not directed at anyone in the workplace, was a stray remark that failed to meet the legal threshold for a cognizable Title VII claim.

No apparent discipline. Two of a trucking company’s employees were racially harassed and one was fired because of race and in retaliation for complaining about racial harassment (EEOC v A.C. Widenhouse, February 22, 2013). The African-American truck drivers were repeatedly subjected to unwelcome derogatory racial comments and slurs, including the n-word, by the general manager (who was also the supervisor) and other white employees. There was no record in the Middle District of North Carolina’s decision of any discipline against the manager or employees who used the racial slurs.

No discipline. Within the context of a foreman calling the African-American employee “boy” over 200 times within an eight-month period and other harassing conduct, that foreman’s failure to discipline a white coworker for using the n-word was evidence of a racially hostile work environment, the Southern District of Alabama ruled (Jackson v Dunn Construction Company Inc, February 21, 2013).

No discipline. After a welder reported a barrage of racial slurs including the n-word to his supervisor, he was told not to worry about his coworkers because they were “from the mountains. They’re not used to being around black people.” (Nooses were also founding hanging from welding booms at the worksite). The Eastern District of Pennsylvania found this evidence of a racially hostile work environment (Francis v Atlas Machining & Welding, Inc, February 14, 2013).

Ineffective discipline. The sole African-American employee in the processing area of a steel plant was subjected to egregious racial harassment by coworkers and supervisors, including liberal use of the n-word and other slurs, KKK and King Kong graffiti, stuffed monkeys hanging on nooses, and a death threat (Turley v ISG Lackawanna, Inc, January 11, 2013). With respect to any disciplinary action taken by management against employees using racial slurs, the Western District of New York found that the manager of labor relations, manager of HR, and the area manager dismissed the misconduct as trivial, conducted half-hearted investigations, and administered “slaps on the wrist” rather than genuine discipline. The jury awarded $24M in punitive damages, which the court reduced to $5M, but it let stand $1.32M in compensatory damages.

My conclusion from this admittedly unscientific survey? Despite the ugliness in the case law I found, which primarily (but not exclusively) reflected late, ineffective, or no discipline at all, it seems that employers that do discipline and/or terminate individuals who use egregious and inexcusable racial language in the workplace—well, they’re not the ones getting sued.