If you’re African-American, your boss (who happens to be the president’s son and part owner) calls you and other African-American employees a “n***er,” and places a handgun on his desk for intimidation whenever meeting with African-American employees, do you have a case for discrimination and harassment? You bet you do.
Those were the facts in Smith v. Superior Production (Ohio Ct. App. 5/8/14) [pdf], in which the trial court had tossed out a $550,000 jury verdict in favor of a laid-off African-American employee working under those conditions.
One issue in the case was the commonness of the use of the n-word. The majority opinion concluded that the use of the n-word, coupled with the brandishing of a handgun, was sufficient to sustain the jury’s verdict:
Reasonable minds can easily conclude that Holstein’s use of the n-word, directly to Smith, while on the production floor, at the same time telling him to go home, was humiliating. The trial court also disregarded the other testimony, including testimony about laying a cocked firearm on the desk when Holstein talked to Smith. Further, the trial court improperly discounted other evidence of a hostile work environment. The trial court argued that racially offensive language was bantered around the plant, but it was not humiliating because it was not directed at Smith most of time. The trial court also argued that Smith was not subject to a hostile work environment even though he was intimidated when Holstein would routinely pull his gun out of a drawer, cock it, and then set it on the desk when meeting with Smith.
The dissent, however, disagreed:
The majority decision also points to management’s common use of “n___” in the workplace as evidence of discriminatory animus. Smith testified that, during the ten-year period between 1998 and 2008, he heard five people—three co-workers, one of Superior’s owners, and Holstein—refer to African Americans as “n___s” in the workplace. Smith, however, failed to testify as to how frequently he heard that racial slur. Given this gap in the evidence, I do not believe that a factfinder could conclude that the use of? “n___” was common.
How does one reconcile this differing of opinions? You don’t. Instead, you understand that while differing minds could come to different decisions, the behavior exhibited in this case is abhorrent and has no place in your workplace. Have a strong anti-discrimination and anti-harassment policy. Train your employees on what it means. Take a zero-tolerance stance on this type of behavior. That way, you should never have to worry about what a judge or jury will do with these types of facts.
Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. He is a Workforce contributing editor. Comment below or email email@example.com. For more information, contact Hyman at (216) 736-7226 or firstname.lastname@example.org. Follow Hyman on Twitter at @JonHyman. You can also follow him on Google Plus.
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