At trial, evidence was introduced that African American employees had made the following comments:
- That the “Dora, the Explorer” mural should be called “Laquisha” instead because the paint on Dora’s skin was so dark
- When a white employee said she was making pork chops for dinner, an African American employee asked “why are you making pork chops, you’re white?”
- The same white employee was told she should not eat soul food because she is white
- An African American employee called out to a student “hey, come here light skinned”
- Several times African American employees had been heard using the “n word”
It was undisputed that no African American employee had ever been disciplined for racial “bantering.” The defendant argued that Hecht’s remark was different because it was the only one that had generated a complaint because someone was offended. Jury found in plaintiff’s favor and the defendant appealed.
While there were other reasons for affirming the lower court’s decision, the Michigan Court of Appeals found that “the above constitutes sufficient circumstantial evidence that plaintiff was similarly situated to African American employees who had made racial remarks at school and to other employees who were not punished.” Therefore, it found that the trial court had not erred in refusing to overturn the jury’s verdict.
So, how much did the jury award the discharged teacher? The plaintiff was awarded $535,120.00. This was the cost to the employer of allowing racial bantering between African American employees and drawing the line with the white employee.
This lesson applies to other protected statuses. It is not alright for the older worker to refer to another older worker as over the hill; or for an employee with disability to poke fun at another employee even if they have the same disability. Even if it turns out that the recipient is not offended, it may still be offensive to another employee who is within earshot, or later be used as evidence of an unlawful animus if the speaker becomes a supervisor. It can also result in a disparate treatment claim when someone finally complains. Simply put, an employer is wise to prohibit any inappropriate remark regardless of who makes it because one day it may be evidence in a lawsuit.
This article was written by Claudia D. Orr, an experienced employment attorney at Plunkett Cooney who can be reached at 313-983-4863 or firstname.lastname@example.org.