posted on Monday, May 19, 2008 12:01 PM
by
Lou Michels
More Racial Harassment Guidance
Following up on the slave driver entry below, a case from Pennsylvania, and affirmed by the Third Circuit, provides another example of the limitations on racial harassment or discrimination claims. In Harris v. Cobra Construction, the court was confronted with a situation that, on its face, appeared to be a likely one for trial instead of disposal by summary judgment. The owner of a company waved a sawed-off shotgun at two of his black employees, and then pointed it at a union business agent, telling him to get off his jobsite. The owner then turned to the two plaintiffs and asked, "What are you two black *******s looking at? Now, get back to work."
Both the district court and the court of appeals found that the claim could not go forward because there was no evidence that the owner's behavior, including his reference to race, was directed towards the two by-standing employees as a result of racial animosity or with the intention to discriminate against them as a result of their race. They were not singled out or threatened based on their race, but instead, on their status as witnesses to an argument between the owner and the business agent. The fact that the owner identified their race in the course of threatening them, without more, did not convert the threat from one of anger to one of racial discrimination.
The court noted that the case might have been different if the owner had made his racial remarks in the context of discussing the plaintiff's work performance or while hiring, firing, demoting or promoting employees. Instead, under the circumstances, the remark was, at worst, a stray remark in the workplace that could not support a claim of employment discrimination, or a claim of hostile environment.
You have to wonder how much further down the path the employer would have had to have gone in order to get a different ruling. What if he had pointed a shotgun directly at the two and referred to them using a racial slur, rather than just identifying them as "black"? In any event, the case again notes that the bar for these kinds of complaints can be higher than people might think initially.