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Employee Can’t Prove Supervisor’s “Black Ass” Remark Motivated His Termination

In a recent unpublished decision, the Eleventh Circuit held that an African-American former employee could not get past summary judgment on his Title VII and Section 1981 race discrimination claims.  Williams v. Housing Opportunities for Persons with Exceptionalities, No. 2:17-cv-00468-ACA (11th Cir. 7/15/19).

Williams worked as a direct care provider for Housing Opportunities for Persons with Exceptionalities (“HOPE”).  He worked weekend evening shifts and was expected to pick up additional shifts depending on his availability.  During the day, Williams attended community college, where he studied air conditioning and refrigeration.  When Williams’s supervisor asked him to cover a shift for another employee who called out one day, Williams refused, stating he was unavailable because he had plans to celebrate his graduation from the community college program.

The conversation that ensued involved a “profanity-laced tirade lasting two or three minutes” by the supervisor in which she stated, “I can’t stand your black ass” and directed Williams to “[g]et out of [her] office.”  Williams took this to mean he was terminated and left.  He did not report to any more of his scheduled shifts.

Williams sued, claiming that his alleged termination was motivated by his race, as evidenced by his supervisor’s comment.  The district court held that Williams failed to present sufficient evidence that a jury could conclude that HOPE fired him because of his race.

On appeal, the Eleventh Circuit agreed.  The court reasoned that the comment “evidences discriminatory animus and is unbefitting of any workplace.”  However, it was not sufficient evidence that race was a motivating factor in Williams’s alleged termination because its content bore no relation to the alleged termination decision.

Racist comments in the workplace often find themselves the subject of race-based harassment or hostile work environment claims.  Although such claims succeed only if the behavior at issue is sufficiently severe or pervasive, courts apparently have no problem accepting references to an employee’s “black ass” as racially-charged and discriminatory.  See, e.g., Lewis v. N.C. DOT, 2006 U.S. Dist. LEXIS 103138, at *18-19 (E.D.N.C. Mar. 14, 2006) (noting that comments referring to an employee’s “black ass” may be seen as unwelcome and discriminatory); Brown v. CSX Transp., 2013 U.S. Dist. LEXIS 132437, at *8-9 (D.S.C. Sept. 17, 2013) (accepting that references to a black employee’s “black ass” were “racially-charged comments”); and Rice v. Howard Cty. Gov’t, 2017 U.S. Dist. LEXIS 121255, at *2, 6 (D. Md. July 31, 2017) (agreeing that the statement “I am going to kick your black ass” was both race-based and physically threatening).

It is not a stretch that courts deciding disparate treatment claims, like in the Williams case, may come to similar conclusions about references to an employee’s “black ass.”  For instance, in Atere-Roberts v. Jeld-Wen, Inc., 28 F. Supp. 2d 976, 980 (W.D.N.C. 1998), the request that an employee “[g]et [his] black ass out here” permitted an inference of race discrimination that established a prima facie case of disparate treatment.

The comment in Atere-Roberts was ultimately insufficient to prove the claim at summary judgment.  But this was because it was a “stray remark” made three years prior to the employment decision at issue and by an individual who was not the decisionmaker.  In Williams, by contrast, the supervisor’s comment was made during the encounter with Williams that culminated in his alleged termination.  That proximity in time renders the remark riskier.

Permitting the use of racially-charged terms and statements in the workplace frequently lands employers in court or before a fair employment practices agency.  What’s worse, racist language is inappropriate and demeaning, among other things.  As such, it is imperative that employers establish and enforce workplace policies that prohibit the use of such language.

 

 

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