posted on Tuesday, April 29, 2008 11:14 AM
by
Lou Michels
Slave Driver Image Apparently Not Hostile Enough
You would think that employers in Alabama would be sensitive to the whole slavery thing, having lost a war over it and serving as Ground Zero for the opening rounds of the civil rights movement in the 50s and 60s.
So that makes what happened at the Mobile Infirmary even more bizarre. There, a clinical pharmacy team leader had a screensaver on her computer bearing the permanent caption "Slave Driver" in flaming letters and depicting an illustration of the team leader standing threateningly over three black males in varying positions of supplication/distress. The team leader, who was Asian, apparently received the screensaver as a prank from one of her African-American interns some time earlier.
Not surprisingly, when a black clinical pharmacist started working in the area, she was offended by the image and complained. Nothing was done about the image, however, until the supervisor received a new laptop computer, about four months later.
Soon after the black pharmacist complained about the image, she began to receive work criticism that escalated into disciplinary action and a memo that was placed into her file characterizing her as "young, arrogant, inability to handle criticisms, and believes that she has a tremendous amount of experiences even though this is not the case." I guess "uppity" couldn't make it past the spell checker.
Ultimately, the employee was terminated in a downsizing. She sued for race discrimination based on her termination. Incredibly, she failed to plead a claim of hostile work environment, either in her EEOC charge or the lawsuit.
The court spent some time discussing this lapse, finding the failure to raise the issue in the charge and the lawsuit to be fatal. But the court also noted that the pharmacist could not even make a prima facie case of hostile work environment because the only thing that she claimed was hostile was the screensaver. Commenting that the image was "utterly inappropriate," the court noted that mere exposure to that image, without more, could not satisfy the requirement that the infirmary's conduct be sufficiently severe or pervasive to alter the conditions of employment.
In other words, without additional evidence of racially motivated hostile conduct, the single PhotoShopped screensaver of an Asian supervisor beating black employees (to which the plaintiff would have been exposed almost daily), was not enough.
I think this is a correct decision, because there was no other indication that the work environment was altered by racial epithets or conduct. I do not recommend that supervisors run out and start pushing the edge of the envelope by placing similar images on their computers, however. I wouldn't count on a plaintiff's lawyer missing that obvious a claim more than once. Odom v. Mobile Infirmary, No. 06-0511-WS (S.D. Ala. Mar. 17 2008).