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.

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6 Responses

  1. MJ says:

    I think this is actually a good example of a court putting aside the crudity and reprehensibility of the remark – and the passions that those type of remarks generate, and actually conducting a legal analysis.

    I’ve read the case, and what Mr. Jordan alleged is that an EMPLOYEE – once in his presence, and allegedly several more times not in his presence -made idiotic, racist, putrid statements. That’s a shame, and if I was IBM I would fire the employee. But given that this is the one incident that Mr. Jordan alleged out of the four years that he worked there, it’s NOT a hostile environment claim under Title VII. First, the alleged “other” comments by the employee were not known to Mr. Jordan, not directed at him, and he didn’t allege that they were know to management at IBM, thus they can’t constitute a basis for a hostile environment. Second, the cases are legion that one “stray remark” cannot be the basis for a hostile environment claim. Remember, we’re talking about holding the EMPLOYER legally responsible, not passing judgment on the remark.

    I would question IBM’s business judgment in firing an employee if the sole reason was that he was reporting this kind of workplace behavior. That seems really stupid, but we don’t know much else about IBM’s justifications because this was dismissed on 12 (b)(6) before and depositions or discovery. But as a purely legal matter, Mr. Jordan wasn’t complaining about a hostile work environment within the meaning of Title VII, and, thus, as an at-will employee IBM could fire him for the complaint.

    I don’t think its right, and I don’t think it’s a good business decision based upon what we know. But as a matter of law, it doesn’t violate Title VII. The law doesn’t provide a remedy for every wrong.

    Dan, I’ll take your bet. If the 4th Circuit goes en banc and reverses, I’ll come back and post the lyrics to “I Was Wrong” by Social Distortion. Counter-offer?

  2. Paul Gowder says:

    Dan, I’m sorry, but I’m going to have to stand with MJ here on the prediction. I practice in the 4th Circuit, indeed, I practice Title VII law in the 4th circuit. There’s no way it goes en banc and reverses this. Not because it shouldn’t: I agree with your analysis. But because the internal politics of the 4th Circuit would make it impossible. They won’t even hear it en banc.

  3. Dan Filler says:

    MJ, I’ll take that bet. If I’m wrong, I’ll admit it in a post titled “Blogger Wrong, Issues Embarrassing Retraction.” Sound good?

  4. phil says:

    I think MJ’s analysis is somewhat off the mark. This is a retaliation case (and a race case), not a hostile work environment case, although the analysis is linked. The question involves whether Mr. Jordan had a legally protected right under Title VII to complain about what everyone agrees are a “history” offensive comments (hey, even the 4th circuit found that the remark was “unacceptably crude & racist”). The Supreme Court repeatedly has held (e.g. Burlington, Faragher, Suders) that harassment law requires employees to tell their employers of potential problems before they get out of hand, before they become “severe and pervasive.” So that is just what Mr. Jordan did in this case and he got fired and the 4th Circuit said that is OK. It can’t be a firing offense to merely report that another employee referred to African-Americans in language that is universally acknowledged as offensive. The policy implications are devastating. This puts a chill on employees reporting incidents of this nature, it also undermines the policy goal (as noted by the USSC) of stopping these incidents at the outset and it also encourages more litigation and more filing of EEOC complaints in order to obtain employee protections (for “participting” in the EEOC process). The 4th Circuit doesn’t worry about that here and it does not attempt to square its decision with multiple USSC decisions that address this issue. It rejected Mr. Jordan’s claim and said that he was too early to complain here. Of course, in other cases, it rejects harassment claims because it says that the employees complained too late. For the 4th Circuit, the message is clear: there is no good time to complain about harassment.

    As for the Court’s (& MJ’s) comments about the “history of . . . inappropriate racial comments,” I think they diminish and distort the allegations in the complaint, which have to be accepted as true. Moreover, under the 4th Circuit’s scenario, it is plain that any complaints earlier than Mr. Jordan’s also would have been rejected.

  5. TL says:

    I think the more disturbing aspect of the opinion was that by starting the opinion with a description of the snipers and saying the comment was a single instance of offensive language directed at the snipers on T.V. the Court basically said that the comments were not employee harassment because they were prompted by the actions of other black men. Does this principle hold up elsewhere? Were anti-Arab remarks made in offices around the country not creating a hostile work environment because the attacks of September 11th, 2001 by Arabs had already “terrorized the community[?]” If I read the case correctly it would seem that if he had been talking about two black men without a backdrop of community fear the comment would not have clearly been singular and a jury would be allowed to decide the case. Does that mean that black men can state a claim for title VII protection only as long as the rest of the black people in the world, or at least the community, are keeping in line and not making the news? I would have hoped the answer to that question would have been a unanimous no.