It should go without saying that dressing up as a Ku Klux Klan (KKK) member in modified work clothing at work is unacceptable conduct in the eyes of any employer. As this case from the U.S. District Court for the Eastern District of Pennsylvania shows, three employees who were fired after being photographed dressed in KKK garb couldn’t prevail on a theory of reverse race discrimination.
Background
Zachary Barker, Francis Boyd Jr., and David Smith were employed in the paint shop at Boeing Company’s Ridley Park facility. Boyd and Smith are Caucasian, and Barker is Native-American. All three were photographed in the spring of 2012 wearing white company-issued paint suits and “head socks” modified to be pointed on top and holding one-foot crosses constructed from paint-mixing sticks and duct tape. They intended to (and did) look like KKK members.
Kenta Smith, an African-American coworker, took the photo with his cell phone. He reported the incident to his supervisor and claimed he was unnerved by it but didn’t want to file a formal complaint. Nonetheless, the incident was reported to Boeing’s HR department, and the company’s equal employment opportunity investigation officer conducted an investigation.
During the investigation, Kenta Smith reported that the three other employees had confronted him dressed as members of the KKK and he had snapped their picture before they could react. The three employees claimed that their black coworker had engineered the photo as a joke and that he used race-based banter in the workplace, referring to white employees as “honkies” and “crackers.”
Boeing concluded that Barker, Boyd, and David Smith had violated its “workplace and sexual harassment” policy. The decision to fire them soon followed. The three employees grieved the termination of their employment through their union, United Auto Workers (UAW) Local 1069.
At least one hearing was held. A discharge board of review upheld Barker’s termination, finding that his behavior was a clear and significant violation of company policy, regardless of whether it was meant in a joking manner. The grievances were later withdrawn.
Barker, Boyd, and David Smith then filed suit against Boeing, alleging that it discriminated against them on the basis of their race. Boeing asked for dismissal of the case without a trial, and the court agreed with its arguments.
Court’s analysis
The court noted that an employee who claims race discrimination must establish that he suffered an adverse employment action under circumstances that would give rise to an inference of intentional discrimination based on his race. In reverse race discrimination cases, the evidence must allow a reasonable fact finder to conclude that the employer treated the employee less favorably than others because of his race.
If the employee can make that showing, then the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for the adverse employment action. After the employer provides its reason, the burden shifts back to the employee to show that the employer’s explanation is pretext, or an excuse, for discrimination.
The court focused on Barker, Boyd, and David Smith’s theory that they were treated differently than Kenta Smith because they are white. They argued that he was as much to blame as they were because he allegedly orchestrated the photo. The meaningful distinction between their role and Kenta Smith’s role, the court said, was that they appeared in the photo and he did not. Moreover, he reported racial harassment and they did not.
The court assumed that even if the employees could establish an inference of discrimination, they would be unable to prove that the reason for their termination was merely a pretext because it is “beyond any doubt that dressing up as the KKK at work constitutes a legitimate, nondiscriminatory basis for termination.” In short, nothing in the record suggested that Boeing’s reason for firing them — that the photo violated its harassment policy — was a lie.
The court also noted that in light of the history of the KKK in America, “it is a simple reality that fair-skinned men presenting themselves as members of the KKK to a dark-skinned person has a very particular resonance.” There was no evidence that Boeing fired the employees for any reason other than what it deemed “a serious act of racial harassment.” The court therefore dismissed their case against the company.
Bottom line
Even when the violation of a workplace policy seems blatant and obvious, it’s important to conduct an investigation before taking permanent disciplinary action, particularly if the violation involves discrimination or harassment. That gives you the opportunity to talk to everyone involved and make a reasoned decision, thereby preventing any argument that your decision was discriminatory. The fact that Boeing undertook an investigation before firing the employees in this case likely helped it defend against their claims.
in Harrisburg, Pennsylvania. She may be contacted at ebensinger@saul.com.