Take a few minutes to read this decision [enhanced version available to Lexis.com subscribers]. It will blow your mind.
Here's the long and short of it:
Three black employees sue for race discrimination claiming that they were subjected to a racially-hostile work environment. The court actually did the math:
During the relevant time period, Facer used the word "***" or "***" almost daily, or at least three to four times per week. Assuming that the Bratchers and Buie worked an average of forty-eight weeks a year, it would mean that Facer used the word "***" or "***" at the work site at least one-hundred forty-four times per year.
The court described these facts as presenting the "rare case where there is no dispute as to the pervasiveness of the conduct in question. No reasonable jury could find that a reasonable African-American would not be offended by this conduct." Also, the court held that the employer's anti-harassment policy was "unreasonable as a matter of law" because it required employees to report harassment to their harassing supervisor.
But here's the kicker: the court found that the plaintiffs could not establish, as a matter of law, that the comments offended them.
In its opinion, the court identified 12 separate complaints that the plaintiffs registered, including to the owners of the company. The court also dismissed the "plaintiffs listen to rap music and rappers say 'n---a' a lot" defense. [Almost as bad as the "she was asking for it" defense]. Notwithstanding, the court considered the testimony of 3 witnesses (out of 24 total) who testified that they did not believe that the plaintiffs were subjectively offended by Facer's conduct -- you know, calling them n---er/n---a every day. That was enough to create a dispute of material facts.
So, this case will go to a jury where the plaintiffs will have to prove that they were offended by what the court itself described as a "steady barrage of opprobrious racial comments."
This article was originally published on Eric B. Meyer's blog, The Employer Handbook.
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