Can a Black worker discriminate against a Black colleague on the basis of race? Are racy photos in the company uniform posted on social media always a slam-dunk reason for termination?
At an employment law briefing held March 10 by the National Employment Law Institute, Elizabeth Minoofar and Madalyn Doucet, employment law attorneys at Paul Hastings, highlighted several judgments from the past few years employers ought to keep in mind when handling workplace complaints.
Same-race harassment can constitute actionable discrimination
In Smith v. P.A.M. Transport, two Black truck drivers brought claims of race discrimination, hostile work environment and retaliation after allegedly being subjected to worse working conditions than White co-workers and being called racist terms by supervisors.
A district court dismissed their claims, determining the terms were “not plainly racist” and that one of the supervisors himself was Black. But an appeals court reversed, finding that one particular term “has an extensive history as a racial slur against African Americans,” and that the supervisor, while Black, could still engage in racial bias against Black workers.
“What stuck out to me” about the decision, Minoofar said, was the court’s explanation that the racist nature of the terms used “was not obviated simply because one of the two supervisors at issue in this case was also African American.”
“There’s definitely a mix of case law on this,” she said, noting past cases in which the alleged harasser having the same protected characteristics as the complainant weighed against the plaintiff. “But I think I would say more recently, we’ve seen the tide turn on this argument, and more and more, we’re seeing cases along the lines of Smith out of the 6th Circuit.”
DEI training can create a hostile work environment if sufficiently unbalanced
While the federal government has set its sights on DEI over the past year, recent litigation has shown courts do not generally consider the training on its own to be hostile. In Young v. Colorado Department of Corrections, for example, a White plaintiff complained a training was discriminatory because it targeted White people as responsible for race discrimination. When he was told his complaint would not be investigated, he resigned and sued, alleging a hostile work environment. The district court dismissed his case, and the 10th Circuit affirmed, noting that one training that did not result in harassment from colleagues did not constitute a hostile work environment.
On the other hand, in Chislett v. New York City Dept. of Education, the 2nd Circuit revived a case in which a White former educator tied a hostile work environment to DEI training that resulted in alleged co-worker harassment that extended into ordinary workplace interactions. The training involved segregating people by race, allowed colleagues to describe the worker as “White and fragile,” “paternalistic,” “defensive” and other terms, and appeared to foster other hostility. The 2nd Circuit found the different circumstances together formed a “mosaic” of evidence that could convince a reasonable jury to find in the plaintiff’s favor.
While it’s important to conduct anti-harassment training, employers should ensure “it applies equally to all employees” and avoids “this type of language,” Minoofar said.
Be wary of questioning the sincerity of religious beliefs
In Barnett v. Inova Health Care Services, a healthcare worker alleged religious discrimination after her employer turned down her request not to receive the COVID-19 vaccine. While she had initially been given an accommodation related to lactation and nursing, the company changed its process and denied an exemption she requested after praying and studying the Bible. While a district court held for the employer, the 4th Circuit reversed, stating that at the motion-to-dismiss stage, a plaintiff only needs to allege her religious beliefs are sincerely held.
“When I’m advising clients on these types of issues, it’s almost always to say that if you are going to question the sincerity or the religiosity of your employees’ asserted belief, you are treading on very thin ice,” Doucet said. “It’s just a dangerous game to play.”
Comparators can make or break a case
The importance of comparators is a theme that emerges throughout discrimination case law, Minoofar said.
In Wawrzenski v. United Airlines, for example, a flight attendant who said she’d endured years of sex discrimination and harassment was fired by the airline after it investigated an anonymous complaint that she’d posted suggestive photos of herself in uniform on her Instagram page and linked to her OnlyFans account, violating company policy. While a district court held in United’s favor, a California appeals court reversed, finding that three male colleagues with similar social media activity were sufficient comparators for a reasonable jury to conclude the firing was pretextual.
“This is a good reminder that while employees certainly can be disciplined for public social media use, if you have a policy in place, you still absolutely have to consider comparators and make sure that if you’re going to apply the policy, that it’s evenly applied to everyone,” Minoofar said.