Fourth Circuit Weighs In On Racist Talk In The Workplace
Full Court Press has a good post on a recent Fourth Circuit decision, Jordan v. Alternative Resources Corp., in which a divided panel upheld the dismissal of a Title VII race discrimination suit. In particular, the plaintiff argued that he had been fired in retaliation for making a complaint to management about what he perceived as a racially hostile working environment. The post at Full Court Press offers many more details, but the core of the court’s holding was that the employee was “unreasonable” in believing that his co-worker’s comments created a hostile working environment.
What were these comments that no reasonable African-American man could possibly have seen creating a hostile work environment? While watching a news account of the arrest of the DC snipers, his co-worker exclaimed: “they should put those two black monkeys in a cage with black apes and let the apes fuck them.” That according to the dissent. The majority redacted the text a bit, so that the gentlememan only suggested that the apes “f–k” them. In the aftermath of this incident, the plaintiff was told by colleagues that this offending speaker had used similar language in the past.
Two thoughts. First, it was interesting to see the majority turn what was clearly family-unfriendly language into, well, family-barely-friendly text. Apparently, for the majority, the “fuck” aspect of this comment was most offensive. Calling African-Americans monkeys – and thereby calling upon a rich history of bigotry – was merely being accurate. (No doubt some will argue that the “fuck” was irrelevant to the claim here, since it was grounded on the monkey image. But that is clearly debatable, if only because the term amplified the speakers intensity of hate.) Judge King’s dissent was very aggressive in terms of word choice. FIrst, he restated the facts, including the word “fuck.” Then, when citing contrary authority, he explicitly noted in parentheticals that those cases involved the use of the term “nigger.” We all know that the mere act of uttering this word is powerful and controversial. His point, presumably, was that any assessment of whether such abusive language could be reasonably viewed as creating a hostile environment cannot occur when the majority is perfuming these statements. Racist language must be addressed squarely, because the mere softening of terminology in a recitation of facts serves to retell a false narrative, one that the plaintiff never experienced. (In some ways, the panel’s decision to obscure the actual language – characterizing it rather than providing a precise image – brings to mind Eugene Volokh’s argument that you can’t discuss the cartoons spoofing Mohammed without seeing the precise images that are under discussion.)
My second point is really a question. Would these two judges – Paul Niemeyer and Emery Widener – have reached the same decision if they had been required to discuss the matter with a third panel member who was African-American? It would have been a lot harder, I imagine. Indeed, if the court decides to hear this case en banc, I think the conversations between judges – including at least two African-Americans who now sit on the Circuit – would be more complicated. Will white judges feel comfortable looking Allison Duncan or Roger Gregory in the eye and telling them these statements aren’t that big a deal? (This raises the question of whether anyone has done an empirical study of the effects of a racially mixed panel on decisions in Title VII cases.)
Keep in mind that this case isn’t about the merits. The question is not whether these statements actually created a hostile environment. It’s not about whether the co-worker ever made these statements. It simply about having a day in court to let a factfinder decide these things. The Fourth Circuit concluded that NO reasonable African-American man, having heard these comments in the workplace, could ever have concluded he was experiencing a hostile environment. Thus, the case cannot proceed to trial. That just doesn’t seem right to me. And I won’t be surprised if it doesn’t seem correct to several other judges on the circuit either. So here’s my prediction: I say the conservative Fourth Circuit hears the case en banc and reverses the panel.
Hat tip: Feminist Law Professors which notes the gender implications to this decision.