Wal-Mart Wins — Racially Offensive Comments Insufficient to Make Terminated Employee’s Case
Were we just talking about Wal-Mart? This much-criticized company is such a frequent employment case defendant that I could probably teach a course in employment law using only Wal-Mart cases! (Of course, I’m not suggesting that the Giant of Bentonville actually violates employment laws, just that it has to defend a wide variety of employment claims. Its size alone would guarantee this, no matter how progressive and compliant its practices.)
In any event, a Wal-Mart case decided by the Eighth Circuit last month illustrates the difficulties of trying to make out a discrimination claim based on verbal comments, rather than by directly undermining the reasons given by the employer for its actions.
I would be way behind the curve in reporting this case; others have done so since it was decided last month, and it has lingered in my “drafts” box too long.
However, I can now report some newer news: on 04/13/06, a petition for rehearing with suggestions for rehearing en banc was filed by the plaintiff, keeping the case alive by requesting that the entire Eighth Circuit revisit the decision that was made by a panel of three.
Others that have reported it have been quite scornful of the decision because there are some quite offensive racial remarks alleged, yet the court nevertheless granted summary judgment for Wal-Mart.
The case is Canady v. Wal-Mart Stores, Inc., No. 05-1137 (8th Circuit 2006)
Here’s my punchy summary:
African-American plaintiff claiming racially discriminatory termination and racially hostile work environment alleged his immediate supervisor made the following discriminatory remarks:
- Referred to himself as a “slave driver” when describing his reputation as a manager.
- Asked plaintiff, “What’s up, my nigga?”
- Referred to plaintiff as “lawn jockey.”
- Said all African Americans look alike.
- Said plaintiff’s skin color seemed to wipe off onto towels.
On the discriminatory termination claim, the Eighth Circuit rejected the argument that these remarks were direct evidence of discrimination. Although they “could well be considered racially offensive,” the supervisor who made them was not involved in the decisions to suspend and then terminate the plaintiff, so they could not be direct evidence of discrimination.
For the same reason, they could not serve as evidence of pretext undermining the employer’s legitimate disciplinary reason for termination (arguing loudly with supervisor in front of customers, other manager, and other employees).
On the racially hostile work environment claim, the court stated there was a “high threshold of actionable harm.” The standard requires proof the “workplace was permeated with discriminatory intimidation, ridicule, and insult.” “[M]ere utterance of an . . . epithet that engenders offensive feelings in a[n] employee . . . does not sufficiently affect the conditions of employment” to give rise to a triable hostile work environment claim.
Taking the plaintiff’s allegations as true, the comments were offensive, but insufficient to meet this threshold of actionable harm. The court found nothing to suggest that use of term “slave driver” was probative of bias, because supervisor used it to describe his reputation as manager, and noted he apologized after plaintiff complained and did not use the term again. He also apologized for the “What’s up, my nigga?” remark when plaintiff complained. There was a strong dissent on this point from one member of the Eighth Circuit panel.
Here’s a nice, more detailed summary: “Comments Made By Supervisor Were Offensive, But Insufficient To Give Rise To Triable Hostile Work Environment Claim”
Here Professor Ross Runkel opines that the majority “weighed the evidence, rather than letting a jury do that”: “Racial slurs but no smoking gun.”The good professor says: “Summary judgment is not the place for a judge to decide contested issues of fact.”
I’m not sure what issues of fact were contested. It seems the essential facts were assumed in favor of the plaintiff (i.e., that the comments were made as alleged), and what the court weighed was their legal significance.
While the case may seem outrageous to those unfamiliar with Title VII jurisprudence, it is unsurprising to me.
The ease with which allegations of discriminatory remarks can be made, creating credibility contests over what was or wasn’t said, has led the courts to develop precisely the guidelines applied here:
(1) there must be a definite connection to the challenged decision and decisionmaker, rather than attempting to taint an entire corporate decisionmaking process by portraying someone not involved in the process as a racist;
(2) to establish an actionable racially hostile environment, a threshold of severity and/or frequency must be crossed, as with hostile environment sexual harassment cases.
Summary judgment should not involve the court deciding disputed facts (e.g., he says it happened, she denies it). But it is perfectly proper for the court to weigh undisputed facts against an established legal standard.
I can find no reference in the decision to [the supervisor] getting disciplined at all for anything he said. So I have a simple question: Does Wal-Mart think it’s OK to call African Americans lawn jockeys? If it’s not, what do they intend to do about it?
Perhaps Wal-Mart does not believe he made the comments. Perhaps he was disciplined but the opinion doesn’t mention this (it was unnecessary to the decision).
Another possibility — one that presents a “learning moment” — is that Wal-Mart got so caught up in responding defensively that it neglected to conduct an investigation and take disciplinary action if warranted.
It’s fundamental that when an employee presents a harassment complaint internally, it must be investigated, and remedied as appropriate. But what if the employer first learns of allegations when they show up on an EEOC charge filed after termination?
There is an institutional tendency to view this as a matter for legal defense, not internal investigation and remediation, when it should be both.
I suggest that neglecting the remedial angle can prove a costly mistake. The Kos question could be killer on cross . . .