Is It Discrimination If You Get Fired For Grabbing a Co-Worker’s Bottom?

© Web Buttons Inc - Fotolia.com
© Web Buttons Inc - Fotolia.com

By Eric B. Meyer

My ears are burning…”

No, not you, Bill Clinton.

And not you either, Homer Simpson.

I’m talking about this guy who worked as an EMT (emergency medical technician) in Pittsburgh. He was accused of grabbing his co-worker by the buttocks and placing his fingers very close to her private area.

(I’d be a little more colorful in my commentary, but I already used up my gratuitous jab with the Clinton bit.)

So, as you can imagine, the cheeky EMT — sorry, couldn’t resist — who is black, was fired. What you may not believe, however, is that this guy claimed that his former employer’s move was racist.

Racist, you say? Maybe…

To prevail on a claim of disparate treatment, a plaintiff must show that his employer treated other similarly-situated employees outside of his protected class more favorably.

The plaintiff here alleged that his employer did not fire another white EMT who allegedly struck a patient. So, the question becomes this: is hitting a patient basically the same thing as grabbing a handful of a co-worker’s backside (allegedly).

Article Continues Below

According to a Pennsylvania federal court in this opinion (Mitchell v. City of Pittsburgh), they’re close enough. To use the court’s words, “grabbing a co-worker’s buttocks” and “striking a patient” are of “comparable seriousness.”

And since the white employee who struck the patient was merely suspended (while the level of his offense could have warranted termination), while the black employee, who supposedly got a handful of tush, was fired, that was enough for the judge to allow the black employee’s discrimination case to proceed to a jury.

Takeaway for employers

The takeaway here is that while you may be inclined to give employees who misbehave at work second chances, there arises a level of misbehavior — I’m thinking aggressive physical contact and sexual assault qualify — where you just fire the employee and move on.

Otherwise, you may end up at trial defending a discrimination case.

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.

Topics

6 Comments on “Is It Discrimination If You Get Fired For Grabbing a Co-Worker’s Bottom?

  1. Dare I comment and say that the takeaway should be to be consistent in applying your practices as an HR department?

    The more interesting question is: Would the judge have ruled otherwise if the common practice was to terminate employees for misconduct?

  2. Interesting. Now here’s a question. At what point can the employer safely say, “We’ve been letting employees get away with murder, and this has to stop.” Is there such a point, or does the employee just take its chances in the interest of positive change?

    This case reminds me of a case I read a long, long time ago where a black employee was fired for “theft” after eating a coworker’s Doritos, which were in the company kitchen. That employee argued that another (white) employee hadn’t been fired for repeatedly falsifying expense reports, so what’s the deal with the Doritos? He won, too. This case is a lot more serious, of course, and I maintain that anytime someone’s person is violated, termination is warranted.

  3. The big difference here is one of proximity. While we don’t know the particulars of the case, let’s assume that the employee actually struck a patient, and that he was likely provoked by something the patient did or said (usually the case, still doesn’t make it right). That is a unique set of circumstances and the likelihood of that employee and patient being in the same room together again is probably small. Termination worthy, probably, but maybe the employee can still be redeemed. There is certainly a limited ongoing threat of continued behaviour.

    Contrast that with a situation where the employee has sexually assaulted a coworker, someone he sees all the time. This creates an untenable situation in the workplace amongst people who have to work with one another continually and intimately. He can’t be left alone with her or any other female employee anymore (for the sake of liability if nothing else), and the threat of ongoing behaviour is much higher. The entire work environment around that individual will forever be awkward at best.

    I think the judge got it wrong, and I think the situations have very different ramifications for the business. If they don’t terminate him, they face action from the employee he assaulted. If they do terminate him, he cries foul, despite the fact that he is a lowlife scumbag. Yes, they probably could avoid it by simply firing anyone who makes a bad decision or mistake, but at some point you have to be able to react to the actual situation without following the script, so that instead of firing a solid long term employee for one mistake, you can educate and rehabilitate them. Maybe that’s easier to do here in Canada, where we can terminate for pretty much any reason as long as we are willing to pay for it…

    1. ChadV, you say (of the cheeky employee):

      “He can’t be left alone with her or any other female employee anymore (for the sake of liability if nothing else).”

      Why wouldn’t this be true of the employee who assaulted a customer as well? Suppose this employee hits another customer? Couldn’t the employer just as likely be accused of negligent retention in that case?

      1. A valid point…the employee may well have a penchant for violence and pose a risk to anyone he may engage. Or maybe not, and this is where I think case-by-case has a case. Back in the day when I was a cop, I was present in an emergency room helping to restrain a violent patient. As the doctor was trying to help this, well, idiot, the patient spit at the doctor, at which point every cop in the room suddenly became very concerned about the shine on his shoes. The doctor, who had had more than enough by this point, may have slapped the patient (I don’t know for sure…I had just noticed that my shoes were slightly scuffed and needing a polish). I certainly heard a sound that may have indicated a slap, and the patient yelled about it for a while, but strangely the subsequent investigation could find no actual witnesses. Should the doctor have been fired for that? I will add that he was the best doc I have known, and I went to him every time I or my young son needed any medical attention. I trusted him completely with my 4 year old, and I never had any reservations being alone in a room with him.

        There is a risk of being culpable if an employee has a known penchant for certain behaviour, absolutely. We have two choices…to fire anyone who ever does anything that might be eventually construed as an indicator or precursor of illegal behaviour (meaning just about everyone), or to treat each case individually. I know it seems a bit naive, and I know it carries definite risk, but I vote for the individual treatment. Having said all that, I also know that there is less risk of lawsuit here in Canada, so maybe we have a little more freedom in how we approach bad situations. Regardless of where you are from, there are no easy answers for something like this.

  4. Yeah, lot’s of things left out here; was there prior disciplinary actions, if any, of the two employee similar, was the length of employment, how were other employees, treated, generally, for similarly serious events, what were the particulars of the named events of this case, etc. Too much left out for me to evaluate at this time.

Leave a Comment

Your email address will not be published. Required fields are marked *