Faced with racially motivated workplace killings, reporters from ABC’s Primetime Live sniffing around your facility, and a spate of race discrimination lawsuits, cracking down on racial harassment might be a good thing, right? Maybe so in some utopian world of rationality and logic, but we live and work “down the rabbit hole.” In our world, terminating a supervisor for sending a racist joke will earn you a jury trial for a race discrimination claim filed by the sacked supervisor. If you haven’t lost your appetite yet, read on for the latest from the Eleventh U.S. Circuit Court of Appeals.
History
Our story begins in 2003, when a Lockheed employee went on a shooting spree at a Mississippi facility, killing five employees and wounding eight. The shooter was a white supremacist ― a fact he made known to his black coworkers. Lockheed was sued over the shootings on the basis that it was aware of the killer’s racist propensities but did little to curb his harassing behavior. The Equal Employment Opportunity Commission (EEOC) issued a report making similar allegations. While the cases percolated, Lockheed learned that ABC news planned to issue a report blaming it for the shootings.
Lockheed has a zero-tolerance policy for workplace harassment. The policy places the responsibility to report harassment on its employees based on their positions. Nonsupervisory workers are required to report violations to their supervisors or HR. Individuals with supervisory responsibilities must report violations directly to HR.
Comparing Apples to Oranges
Anthony Mitten was a Lockheed supervisor. As public scrutiny continued to shine on the employer, Mitten was e-mailed a racially insensitive “joke.” The e-mail contained a “top 10” list of derogatory stereotypes that portrayed blacks as criminals, pimps, and gang members. Mitten forwarded the e-mail to his supervisor ― not to report it, but because he thought his supervisor might find it funny. He was later fired for failing to report the e-mail to HR as required under the company’s zero-tolerance policy. Mitten, who is white, learned that two black nonsupervisory employees were suspended, rather than terminated, for sending a racist e-mail.
Mitten sued for race discrimination, and a trial judge threw the case out, concluding that Lockheed was allowed to hold its supervisors to a higher standard under the policy and therefore could impose harsher punishment for their violations. (Although not legally required, we think judges and juries expect you to hold supervisors to a higher standard of conduct). Because Mitten couldn’t point to any black supervisor who violated the policy but received lesser punishment, he couldn’t show that he was treated differently than another similarly situated individual. Mitten appealed.
Off with Their Heads!
The Eleventh Circuit (which includes Alabama, Florida, and Georgia) wasn’t as impressed as the lower court with Lockheed’s aggressive approach in enforcing its no-harassment policy. The appeals court started with the modest proposition that there was more than one way for Mitten to prove discrimination; he wasn’t limited to identifying a black supervisor who was given a pass. The court then considered several facts as evidence of discrimination ― evidence that no doubt will cause endless heartburn for HR professionals.
The Eleventh Circuit traced the e-mail scandal to a complaint by a black employee who had been vocal in his complaints about racial insensitivity and filed complaints with the EEOC. When reporting the e-mail, the employee also informed Lockheed that he had retained a lawyer. At the same time, ABC news was about to air its report suggesting that Lockheed tolerated white-on-black harassment.
In determining the appropriate punishment for Mitten, the vice president of HR reviewed a matrix identifying the role, supervisory status, and race of each person involved in the incident. Based on the matrix, Mitten and six other white employees were fired for distributing the racist e-mail. In a later incident, a black nonsupervisory employee circulated a potentially racist e-mail but self-reported the incident after being told it could be viewed as racist. She received only a suspension.
The court of appeals seized on three issues it deemed sufficient for Mitten to prove discrimination. First, it concluded that Lockheed could have terminated him because it was worried about how his situation might play out in the pending lawsuits. Likewise, it could have wanted to show a tough stance against harassment in light of the looming ABC news story. (Of course, we think the employer wanted to show a tough stance against harassment, but we’re not sure how that qualifies as proof of discrimination.)
Second, the court made much of the disciplinary matrix that showed the race of each employee involved. (The court apparently has never conducted an analysis to ensure that decisions are consistent for the very purpose of avoiding discrimination.) Again, we’re not sure how trying to carefully avoid discrimination amounts to proof of discrimination.
Finally, although Mitten couldn’t point to another supervisor who violated the zero-tolerance policy, he identified various black and white nonsupervisory employees who were treated differently, albeit in different circumstances. The court gave no consideration to the different circumstances. It did, however, find that Mitten is entitled to a trial on his race discrimination claim. By sending the case back to the lower court, the Eleventh Circuit may effectively be gutting its previous decisions that allowed you to hold a supervisor to a higher standard of conduct. Smith v. Lockheed-Martin Corp. (11th Cir., 2011).
Some Cold Comfort
This is a very troubling case for employers trying to mete out discipline on a consistent and rational basis. It will be more difficult (or at least riskier) to acknowledge the subtle differences in situations involving discipline. In fact, it may require that you take a much more rigid approach to enforcing key policies. At a minimum, we recommend consulting counsel when analyzing the racial makeup of affected employees. Although Lockheed’s matrix was well-intentioned, the court turned it from shield to sword. Had it been prepared for counsel, it would have been kept confidential.