Apparently, it’s still all right in the Fourth Circuit to fire someone for reporting racial slurs in the workplace.
Remember Robert Jordan? He was the African-American man who alleged that his company changed his work schedule and then fired him shortly after he complained that a co-worker had 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.” In May we reported that Bush I appointee Paul Niemeyer and Nixon appointee H. Emory Widener -- over an incredulous dissent by Clinton appointee Robert King -- decided that federal anti-discrimination law did not outlaw Jordan's employer from retaliating against him for making his complaint.
Well, now the full Fourth Circuit has refused to re-hear the case. The judges split 5-5. But rehearing requires a majority vote. So the full court won't be giving any second chances to Jordan and the other workers whom Judges Niemeyer and Widener have stuck between a rock and hard place. You see, Supreme Court precedent and company policies require workers to report racially-charged conduct -- but now the Fourth Circuit has stripped them of much of their protection against retaliation when they do so.
Three other Republican appointees -- J. Harvie Wilkinson (Reagan), Dennis Shedd (Bush II), Allyson Duncan (Bush II) -- joined Judges Niemeyer and Widener in voting against rehearing the case. In an opinion explaining his vote, Judge Niemeyer repeated what he said in his panel opinion: “Title VII does not create a claim for every employee who complains about … other employees’ isolated racial slurs.” And once again, Judge King responded by pointing out that Judge Niemeyer was still short-changing both the facts and the law, exactly as he did the first go-round, in order to limit the scope of Title VII's protections:
- Judge Niemeyer ignored the fact that Jordan didn't base his report on a "single," "isolated" slur, which in Judge Niemeyer's eyes was not enough to create a racially hostile work environment triggering Title VII protection. Rather, Jordan was acting on what was clearly an emerging pattern of unlawful conduct: after hearing the "black monkeys" comment but before making his report, Jordan had been informed by two other co-workers that the offending party had made similar comments before.
- Judge Niemeyer's view of the law departs from Fourth Circuit precedent, defies Supreme Court rulings and "nullifies Congress's policy judgment." Why? As we explained back in May, the primary purpose of Title VII is to avoid harm rather than redress it. So it effectively requires employees to report any actions that they reasonably think might violate the law as soon as possible or else forfeit their right to complain about it later. And most companies require the same thing. By refusing workers like Jordan protection for their whistle-blowing, the Fourth Circuit undermines these important requirements. As Judge King initially observed in his dissent from the panel opinion, "[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.”
This time, Judge King was joined by four other colleagues: William Wilkins (Reagan), Blane Michael (Clinton), William Traxler (Clinton), and Roger Gregory ( initially Clinton, then Bush II). Importantly, those five judges went beyond criticizing Judge Niemeyer's opinion, taking the significant -- and unusual -- step of directly calling on the Supreme Court to review the case. Let's hope the high court hears the judges' pleas, gives Robert Jordan another chance to prove his claims and, above all, restores the legal protections that Congress intended to provide the nation's workers.