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On the streets, and in the workplace

August 19th, 2014  |  Lisa Milam

By Lisa Milam-Perez, J.D.

“I can’t believe I still have to protest this shit.” The sign—hoisted in defiance by a young woman in the aftermath of the police shooting in Ferguson, Missouri, that ended the life of a young, unarmed black man—quickly went viral as the ongoing unrest in that town continued into a second week. In times like these, we’re left wondering whether the United States will ever truly overcome the racial discord that can seem permanently woven into the nation’s DNA.

My reaction is not unlike that young protester when I read contemporary cases of egregious racial harassment in the workplace. Not so much the failures-to-promote, the disparate impacts, the subtle biases that likely will always be with us, I fear. But the nooses, the “ni**ers,” the KKK graffiti adorning the bathroom walls of America’s employers? I can’t believe I still have to write about this stuff.

At CSX Transportation, employees alleged they were subjected to racial slurs like “porch monkey” and “spook” on the bathroom walls, along with the “n” word, and images of the Confederate flag were displayed at regional facilities. Vulgar racial slurs were frequently used in the presence of black employees (and their supervisors, who did nothing to stop them). At shipbuilder Austal USA (the defendant in a number of such cases in recent years): allegations that nooses were hung repeatedly in the workplace, coworkers wore Confederate flag t-shirts, black men were called “boys” and “monkeys,” and had to view drawings of stick-figure hangmen with racist captions. Graffiti graced the bathroom walls there too, bearing such aspersions as “ni**ers travel in packs just like monkeys,” “How do you keep ten ni**ers from raping your wife? Give them a basketball,” and ominous threats like “the KKK is getting bigger.” Austal repeatedly scrubbed the graffiti off the walls until, conceding defeat, it finally painted them black.

At a YRC Worldwide terminal, nooses were displayed in conspicuous areas, occasionally in locations frequented by management, and stayed there for extended durations. One black forklift driver found one hanging from his forklift. Graffiti in the form of “KKK,” racial slurs, and death threats were a constant fixture on bathroom walls there too. Coworkers displayed racist tattoos and symbols; some had Confederate license plates and flags on their cars. Black employees were called “ni**er” and similar epithets at least twice a week. At Yellow Transportation, nooses were strung along doorways, windows, and equipment. Black employees faced insults and intimidation, with comments such as “Get a rope,” “N***** must die,” — sometimes right in front of management — and the occasional destruction of personal property. The graffiti at that worksite included drawings of monkeys, references to lips, and swastikas.

An Atlanta manufacturer, sued by the EEOC, had subjected African-American employees to violent, racist graffiti, including nooses, Confederate flags, swastikas, “KKK,” “white power,” and other physically threatening epithets, including “die, ni**er, die,” “ni**er, go home,” and “we coming to get you ni**ers.” In another case, a federal jury awarded $25 million to a former employee of a shuttered ArcelorMittal steel plant in Lackawanna, New York, who endured “KKK” and “King Kong lives” graffiti repeatedly being sprayed on the walls, racial epithets regularly tossed about the workplace (with management’s tacit approval), and a stuffed monkey with a noose around its neck hanging from the driver’s side mirror of his car. After the employee had filed his discrimination complaint, a white coworker placed a sign on the door of his work booth that read “Dancing Gorilla.”

In the cases noted above, the employees prevailed on their race discrimination claims, or at least survived summary judgment. But that’s not always so. A suit brought against Northrop Grumman Shipbuilding failed because the claims were deemed insufficiently severe or pervasive, despite the presence of nooses in the workplace on two separate occasions, along with evidence of racially derogatory writings, depictions, and graffiti. There was racial animus, a federal court found, but not enough to constitute a racially hostile work environment, considering “the totality of the circumstances.” It was the totality of circumstances defense that helped Tyson Foods escape liability for decades of racial harassment alleged by an employee, including nooses, KKK graffiti, and references to “monkey” and “boy,” which the district court had conceded were “overtly racial.” But these were isolated incidents, the court found. Infrequent. Insufficiently severe. To state a viable claim, he would have to endure still more.

These particular events unfolded in U.S. workplaces during just the last few years—only a few of the cases that made their way to federal court. No doubt a mere drop in the bucket, if you ponder the myriad discrimination claims never brought. That’s why I bristle at comments that overt race discrimination is a thing of the past. If only that were true. But in our workplaces, and on our streets, there is much yet to be done.