A Lesson in Why You Can Never Tolerate a Supervisor’s Racial Slurs

By Eric B. Meyer

Even a few stray remarks can land your business in hot water…as one employer recently learned.

A cashier at a store in Mississippi was promoted to lead associate just a few months after her employment began. A few years later, the lead associate expressed interest in becoming an assistant manager. That promotion never happened.

Nasty, racist remarks

According to the EEOC, this employee was never promoted because of her race. Specifically, and you can read the full opinion here (in EEOC v. Dolgencoro, LLC), the EEOC alleged that the employee’s supervisor was a nasty racist.

Store employees heard O’Neal, the store manager and decision maker, frequently use the word “nigger” when referring to black persons, and once call Hersey a “lazy black nigger.” O’Neal also told an employee that “she didn’t want a nigger working for her and that she was trying to get Mrs. Dee [Hersey] to leave,” expressly stating that she “was not going to make [Hersey] her assistant because she did not want a nigger working for her.”

Now, you’d think that this would be an open-and-shut case for the EEOC — except, the supervisor made some of the comments more than one year after the last challenged promotion decision.

Therefore, because the comments did not directly relate to the employment decision at issue, they did not constitute direct evidence of discrimination. Rather, comments that are not temporally related get classified as stray remarks.

But, if you think that a comment here and there can’t result in significant exposure for your business, well…

A case for holding anti-harassment training

In many instances, a plaintiff can still prevail on a race discrimination claim through circumstantial evidence; i.e., with facts that reflect discriminatory animus on the part of a person that is either primarily responsible for the challenged employment action or by a person with influence or leverage over the relevant decision maker.

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So, if one were to believe the EEOC’s evidence, then O’Neal said plenty to lead a reasonable person to conclude that the lead associate was not promoted because of her race.

So, ask yourself: Has it been a while since you conducted anti-harassment training in your workplace?

If so, use this case as motivation to get back to basics and remind your workforce that this type of behavior is never tolerated in the workplace. Because even a few stray comments can create a big legal headache for your company.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


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