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Tuesday, May 16, 2006

Fourth Circuit OKs Firing Worker Who Reported That Co-Worker Referred to African-Americans as “Black Monkeys”

While a group of workers watched a breaking news story on the office TV, one employee known for making similar comments blurted out, “They should put those two black monkeys in a cage with a bunch of black apes and let the apes f**k them.” Last Friday, May 12, a divided Fourth Circuit panel concluded that there’s nothing illegal about firing an employee for reporting such racially inflammatory remarks to supervisors. Republican appointees Paul Niemeyer (Bush I) and H. Emory Widener (Nixon) joined in the majority over a sharp dissent by Clinton appointee Robert King, who simply could not fathom a ruling so manifestly contrary to federal anti-discrimination law and the public policy goals underlying it.

In October 2002, Robert Jordan, an African-American employee at an IBM office in Montgomery County, Maryland, stood with co-workers watching television reports of the capture of two men suspected of being the notorious Washington, D.C. area snipers. After hearing the news, Jordan’s coworker, Jay Farjah, uttered the “black monkey” comment. Offended, Jordan discussed the remark with two other co-workers, each of whom revealed that Farjah had made similar remarks before. Pursuant to IBM’s mandatory anti-harassment policy, Jordan quickly reported Farjah’s behavior to his supervisors. How did they respond? Within a month’s time, they changed Jordan’s shift so that he could no longer pick up his son from school, made a crude remark toward him at a holiday party and then, despite his four years of service to the company, fired him.

Title VII of the Civil Rights Act of 1964 outlaws retaliation against employees who report workplace discrimination, including racially hostile work settings. By dismissing Jordan’s case at the earliest possible stage of litigation, Judges Niemeyer and Widener ruled that IBM did not violate Title VII even if it did retaliate against Jordan for his report. Their reasoning? Jordan was not blowing the whistle on what a reasonable person would perceive as unlawful; rather, they said, he was reporting nothing more than a “unique and never-to-be-repeated” incident that did not reflect a fully-ripened or “planned” racially hostile work environment. Such a report, they concluded, was insufficient to trigger Title VII’s protections against retaliation.

It does not take a particularly astute legal mind to recognize that the majority’s analysis ignored the fact that Jordan had learned of similar incidents, which suggested an emerging pattern of misconduct. In the eyes of any reasonable person, this pattern could have put IBM in legal jeopardy. Nor, as Judge King pointed out, does it take a particularly sensitive soul to discern just how “profound[ly] insult[ing],” and just how profoundly revealing of Farjah’s “deep hostility towards [African-Americans],” the “black monkey” epithet was – an epithet that “plays on historic, bigoted stereotypes that have characterized [African-Americans] as uncivilized, non-human creatures that are intellectually and culturally inferior to whites.” Both the non-isolated nature and the severity of the remark indicate that, contrary to the majority’s ruling, Jordan was engaged in activity protected under Title VII, i.e., opposition to a racially hostile work environment. Only a “tortured reading” of Title VII – one “imagin[ing] a fanciful world where bigots announce their intentions to repeatedly belittle racial minorities at the outset” – could compel the opposite conclusion, according to Judge King.

There’s another, even larger problem with the analysis of Judges Niemeyer and Widener. The primary purpose of Title VII is to avoid harm rather than redress it. Accordingly, it effectively imposes a duty on employees to report, as soon as possible, any actions that they reasonably think might violate the law. Most companies, including IBM, have corresponding internal policy mandates. By refusing workers like Jordan protection for their whistle-blowing, Judges Niemeyer and Widener undermine these important requirements. As Judge King observed, “[Today’s] decision has placed employees like Jordan in an untenable position, requiring them to report racially hostile conduct, but leaving them entirely at the employer’s mercy when they do so.” On the flip-side, if due to fear of retaliation they fail to report such conduct, their only other option is to “remain quiet and work in a racially hostile environment with no legal recourse beyond resignation. Of course,” Judge King concluded, “the essential purpose of Title VII was to avoid such situations.”

Judge King also had choice words for IBM:

IBM’s use of the machinery of justice has placed its employees in exactly that unenviable situation. IBM’s position in this appeal (ratified by the majority’s decision) is that it can, with impunity, fire employees because they have reported harassing and racially charged conduct. This position is fundamentally inconsistent with Title VII and the notion of an effective anti-harassment policy, and it should alarm IBM’s employees. Yet, as IBM’s lawyers acknowledged at oral argument, in other judicial forums IBM actually markets its anti-harassment policy as a mode of Title VII compliance …
But alas, such choice words are of little comfort to workers like Robert Jordan who, stripped of their legal protections, must continue to weather the chill winds that blow from the Fourth Circuit.

Jordan v. Alternative Resources Corp., No. 05-1485 (4th Cir. May 12, 2006)

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