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Racial Harassment

     Monthly Law Journal Article: Workplace Harassment by Law Enforcement and Correctional Supervisors, Part 2, Racial Harassment, 2013 (10) AELE Mo. L. J. 201.

     White employees of a sheriff's department stated that they had shaved their heads as a sign of solidarity with a coworker who lost his hair after chemotherapy for cancer. The department, however, then launched an investigation into claims that the plaintiffs were white supremacist skinheads. They filed complaints of racial harassment to the EEOC. They sued the Department, claiming unlawful retaliation against them for their racial harassment complaints and threats to charge them with making a false report to the EEOC. While this made out a prima facie case of retaliation, the retaliation claims were properly dismissed. The Department showed a non-retaliatory purpose for the threats as the plaintiffs provided very inconsistent accounts concerning a black deputy's alleged harassing conduct of labeling them skinheads, and the plaintiffs failed to show that this was just a pretext for retaliation. Cox v. Onondaga Cnty. Sheriff's Dep't., #12-1526, 2014 U.S. App. Lexis 13962, 98 Empl. Prac. Dec. (CCH) P45120, 123 Fair Empl. Prac. Cas. (BNA) 1185 (2nd Cir.).
     A female African-American employee of the Merit Systems Protection Board (MSPB), the federal entity charged with addressing the grievances of federal workers challenging discriminatory employment practices, claimed that her supervisors had created a hostile work environment discriminating against her on the basis of both race and sex. Upholding summary judgment for the employer, a federal appeals court found that while the supervisors' actions "may have been unprofessional, uncivil, and somewhat boorish, they did not constitute an adequate factual basis for the Title VII claims presented here." The court found that alleged selective enforcement of a time and attendance policy was not severe or pervasive enough to create a hostile working environment. Further, the employee's performance reviews were not uniformly negative, and criticisms of her had some legitimate basis, for which areas of improvement were recommended. An "outburst" by a supervisor and coworker was an isolated expression of frustration, even if ill-mannered and tactless. The plaintiff's complaint also failed to clearly raise a retaliation claim. Brooks v. Grundmann, #12-5171, 2014 U.S. App. Lexis 6942, 122 Fair Empl. Prac. Cas. (BNA) 661 (D.C. Cir.).
     Two former police officers sued a municipality, claiming that they had been subjected to a racially hostile work environment. They asked for mental anguish damages and the defendant municipality attempted to engage in discovery regarding the basis for their mental anguish claims. The plaintiffs refused to comply with the discovery requests, asserting that physician and psychotherapist doctor-patient privilege protected their medical, prescription, and psychological counseling records. The Alaska Supreme Court agreed, concluding that a plaintiff asserting "garden-variety" mental anguish claims in the context of an employment discrimination lawsuit did not constitute an automatic waiver of the applicable privileges. Kennedy v. Municipality of Anchorage, #S-14762, 2013 Alas. Lexis 104.
     An African-American employee working for a university claimed that she was subjected to racial harassment by another employee who she contended was her supervisor. She sought to hold the employer vicariously liable for the other employee's actions. The U.S. Supreme Court held that an employee is classified as a supervisor for purposes of vicarious liability under Title VII only in circumstances where he or she is given authority by the employer to take "tangible employment actions" against the alleged victim. In this case, no such empowerment existed, so the other employee was not a supervisor. A tangible employment action is one that effects a significant change in "employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Vance v. Ball State University, #11-556, 2013 U.S. Lexis 4703.
     A woman employed as a Correction Lieutenant at a women's prison was among less than 3 percent of those in that job who were African-American. She served as a witness in a retaliation complaint filed by a female coworker. Subsequently, an ex-felon visitor to the prison got into a dispute with her about not letting her children into the prison because she had not followed required procedures. The visitor complained to another lieutenant referring twice to the plaintiff as a "nigger." Neither the other lieutenant nor any other person disputed the use of the term. She claimed that, for close to three years she was subjected her to a continuous stream of adverse employment action which turned her work into a hostile work environment due to her race, gender, or protected activity. The court rejected all these claims, finding that the plaintiff failed to show that a co-worker's failure to remonstrate against racist remarks by a prison visitor was inadequate to create an objectively racially hostile workplace. She also failed to show a sexually hostile workplace, or that she was subjected to unlawful retaliation. Cooper v. Cate, #1:10-cv-899, 2012 U.S. Dist. Lexis 66411 (E.D. Cal.).
     Appellate court sustains the termination of an African-American police officer at an Army facility who was observed on videotape placing highly offensive materials in another coworker’s mailbox. The three-judge panel rejected a claim of racially-motivate hostile work environment because it was not severe enough to create an abusive working environment. An Asian-American superior had denied a leave request, lied to him about a meeting, requested verification of a drug test, and had called him "boy." Perry v. Harvey, #08-3339, 2009 U.S. App. Lexis 12441 (Unpub. 3rd Cir.).
      In a racial harassment action, the fact that some of the incidents occurred outside of the workplace does not mean that they are irrelevant to his claim. Brown v. N.Y. Dept. of Corr. Serv., #02-CV-6666, 2008 U.S. Dist. Lexis 87312 (W.D.N.Y.).
    Arbitrator sustains the termination of a private sector employee that called a coworker a "mother fucking nigger," rejecting the union's argument that since both grievant and her coworker are African-American, no violation of the employer's discriminatory harassment policy occurred. U.S. Steel Corp. and Steelworkers L-1014, 124 LA (BNA) 1021 (Petersen, 2007).
     Summary judgment for a county and its fire chief are set aside. Female African-American firefighter adequately alleged that she was subjected to a pattern of persistent harassment severe enough to alter the conditions of her employment. Terrell v. Contra Costa County, #04-17228, 2007 U.S. App. Lexis 8980 (Unpub. 9th Cir.).
     Los Angeles Mayor Antonio Villaraigosa vetoes a city council approved settlement of $2.7 million for a black firefighter who was served dog food in his spaghetti dinner by white firefighters at the fire station. Pierce v. City of Los Angeles, #BC 345845, 180 Labor Rel. Rptr. (BNA) 373, 44 (2182) G.E.R.R. (BNA) 1224 (L.A. Super. 2006); City Claim #C05-47L4, City Council Agenda #06-1305. Veto message: Remarks regarding LAFD hazing settlement (11/20/2006). {N/R}
     Sixth Circuit affirms a jury award of $175,000 in compensatory damages for a black firefighter that was subjected to racial and retaliatory harassment. The plaintiff was assigned to a firehouse that had a "Wall of Hate" with derogatory comments directed at black firefighters. Jordan v. City of Cleveland, #04-3389, 2006 U.S. App. Lexis 16821, 2006 FED App. 0226P, 98 FEP Cases (BNA) 682 (6th Cir. 2006). {N/R}
     Appellate court overturns a jury verdict in favor of a black deputy sheriff who alleged that he was harassed and demoted because of his race; he failed to produce evidence of the "severe and pervasive" offensive conduct. Yancey v. Sheriff of Jefferson County, #2002-CA-000229-MR (Unpub. Ky. App. 2004). {N/R}
     In a Title VII suit brought against the New York Div. of Military and Naval Affairs, alleging racially harassing and retaliatory actions by a National Guard superior while they were acting in their civilian capacities, the action was properly dismissed because the challenged conduct was integrally related to the military's unique structure and was therefore nonjusticiable. Overton v. N.Y., #03-6008, 2004 U.S. App. Lexis 10805 (2d Cir. 2004). {N/R}
     Federal appeals court concludes a jury could find that a safety director was harassed by coworkers who used the word "nigger." However, because they were not his supervisors, a summary judgment for the employer is affirmed. Hrobowski v. Worthington, #03-2167, 2004 U.S. App. Lexis 2533 (7th Cir. 2004). {N/R}
     Federal court enforces an arbitration award requiring an employer to reinstate, with loss of six months of back pay, a white employee who referred to a superior as a "fucking nigger." Courts must not set aside arbitration awards in the absence of a clearly violated public policy; the superior did not hear the remark and the worker had a twelve-year record of good employment. GITS Mfg. v. Local 281, #4:02cv40243, 2003 U.S. Dist. Lexis 7963, 172 LRRM (BNA) 2463 (S.D.Iowa 2003). {N/R}
     Eighth Circuit affirms a jury verdict of only $1 for a minority firefighter who claimed a racially hostile work environment. Mems v. City of St. Paul, #02-1834, 2003 U.S. App. Lexis 8150 (8th Cir. April 30, 2003). {N/R}
     Appellate court rejects a defamation and harassment suit, filed against the city by an Asian-American police officer, after his sergeant referred to him as a "little fucking gook" to another officer. The slur was not severe or pervasive. Herndon v. City of Everett, #49406-6-I, 2002 Wash. App. Lexis 2161, 113 Wn. App. 1031 (Unpub. Wash. App. 2002). {N/R}
     A white manager at a correctional facility is allowed to proceed with federal racial harassment claims (including epithets and false accusations of engaging in Ku Klux Klan activities). Paxson v. Cook County, #02-C-2028, 2002 U.S. Dist. Lexis 15647 (N.D.Ill. 2002). {N/R}
     Black former police officer, who endured racial taunts from white coworkers, will receive a court-approved settlement of $112,754, plus $84,246 in legal fees, for personal injury and emotional distress. Harrell v. Oak Hill, #6:02-cv-00018, 40 (1981) G.E.R.R. (BNA) 1033 (Unpub., M.D. Fla. 2002). [2003 FP Jan]
     Federal court declines to dismiss a suit by a white manager at a juvenile facility who claims that he was subjected to racial harassment and false accusations of being a Klansman. Paxson v. Cook County, #02-C-2028, 2002 U.S. Dist. Lexis 15647 (N.D.Ill. 2002). {N/R}
     Ninth Circuit Court of Appeals upholds a $1 million punitive damages award to a black worker who was repeatedly subjected to jokes and racial slurs. Swinton v. Potomac Corp., #99-36147, 270 F.3d 794, 2001 U.S. App. Lexis 22853, 87 FEP Cases (BNA) 65 (9th Cir. 2001). {N/R}
     New Jersey State Police pays $5 million to settle a suit filed by 13 black state troopers who were harassed and denied promotions. Individual awards range from $225,000 to $500,000, plus attorney's fees. Davis v. New Jersey Dept. of Law and Public Safety, #L-2229-97 (N.J. Mercer Co. Super. 2002); N.J. Law Journal (7-9-2002); prior interim opin. at 327 N.J. Super. 59, 742 A.2d 619, 1999 N.J. Super. Lexis 424 (1999). {N/R}
    Police officer's lawsuit for enduring a retaliatory, hostile work environment because of his opposition to a superior's orders to enforce the law in a discriminatory manner was not unlawful discrimination because of his "race, color, religion, sex or national origin" within the meaning of Title VII. Johnson v. San Antonio, #00-50834, 273 F.3d 1094, 2001 U.S. App. Lexis 22658 (5th Cir. unpub.); cert. den. #01-924, 122 S. Ct. 1204 (2002). [N/R]
     Federal court rejects a retaliation claim where a terminated officer had complained of a racist remark by a coworker. Sistruck v. Neuman, #98-8209-CIV, 2000 U.S. Dist. Lexis 14691, 83 FEP Cases (BNA) 1287 (S.D. Fla.). [2001 FP 172]
     Federal court refuses to dismiss a claim that white coworkers wrote restroom wall racist graffiti, peppered the cars of black officers with BBs and left a dead fish on a black officer's desk. Jones v. New York City Dept. of Correction, 99 Civ. 10031, 2001 U.S. Dist. Lexis 2669 (Unpub. S.D.N.Y.). [2001 FP 58-9]
     Federal appeals court upholds $100,000 verdict for a black officer who was repeatedly called a "nigger" by his black supervisor. Ross v. Douglas Co., #00-2688, 234 F.3d 391, 2000 U.S. App. Lexis 31390, 84 FEP Cases (BNA) 791 (8th Cir.). [2001 FP 12]
     Calling a black employee an “Oreo” and a “bitch” was not severe enough to constitute a Title VII violation. Washington v. Bd. of Trustees, #98 C 5632, 2001 U.S. Dist. Lexis 442, 85 FEP Cases (BNA) 464, 2001 WL 47006 (Unpub. N.D.Ill). {N/R}
     A white supervisor's rudeness, abruptness, swearing and confrontational style was not racial harassment, where the evidence showed that the manager acted disrespectful towards all subordinates, regardless of their race. Utomi v. Cook County, #98C3722, 2001 U.S. Dist. Lexis 12013 (Unpub. N.D.Ill.). {N/R}
     Federal jury awards a black, ex- LAPD officer $5.3 million for race discrimination, harassment, and retaliation. Francois v. City of Los Angeles, Super.Ct., Los Ang. Co., Cal. #BC186536, 38 (1884) G.E.R.R. (BNA) 1222 (10/6/00). [2000 FP 173]
     Black officer loses harassment suit against her dept. Although a fellow officer had called her a "dumb nigger," she had used similar language herself. Seven minor incidents in seven years does not create an intolerable workplace. Patterson v. Fairfax Co., #99-1738, 2000 U.S. App. Lexis 11009 (4th Cir.). [2000 FP 123]
     Federal appeals court affirms order that a sheriff's employee who brought a frivolous lawsuit against the county and her attorney must pay the defendants' legal costs. Wilson- Simmons v. Lake Co. Sheriff's Dept., #98-3553, 207 F.3d 818, 82 FEP Cases (BNA) 727, 2000 U.S. App. Lexis 4648, 2000 FED App. 0104P (6th Cir.), affirming 982 F. Supp. 496, 1997 U.S. Dist. Lexis 17359 (N.D. Ohio). [2000 FP 75]
     EEOC steps up lawsuits against employers that tolerate worksite racist and sexual graffiti. One firm has agreed to a $1.3 million settlement. EEOC v. Foster Wheeler Const., #98 C-1601 (N.D. Ill.); prior rulings at 1999 U.S. Dist. Lexis 10610, 10565, 10993, and 11226; 1998 U.S. Dist. Lexis 19114. [2000 FP 44-5]
     Union can be liable for failing to protect its members. Harper v. Pipefitters L-597, #97 C-4793, 1998 U.S. Dist. Lexis 11908 (N.D. Ill.). [2000 FP 45]
     Black security guards failed to established that their workplace was permeated with severe or pervasive discriminatory intimidation. The affidavits showed racial incidents were isolated and the employer may have harassed them in retaliation for having filed claims with the state labor relations board. Brady v. KBI Security Service, 91 F.Supp.2d 504, 2000 U.S. Dist. Lexis 4561, 82 FEP Cases (BNA) 1110 (E.D.N.Y. 2000). {N/R}
     Arbitrator upholds 3-day suspension of employee who distributed an Ebonics "quiz" that demeaned women and blacks. Pepsi v. Teamsters L-992, 110 LA (BNA) 803 (Bernhardt, 1998). [1999 FP 10-11]
     Sixth Circuit sets aside an employer's verdict in a harassment and wrongful termination case. Trial court should have let the jury know about a "Nigger Application Form" that had been freely circulated in the workplace. Robinson v. Runyon, #96-4100, 149 F.3d 507, 1998 U.S. App. Lexis 16739, 1998 FED App. 0222P (6th Cir.). [1998 FP 171]
     Ninth Circuit reverses a $150,000 award to an Afro-American military technician who claimed hostile environment discrimination because a monkey was depicted in an office memo. Gregory v. Widnall, #97-35600, 1998 U.S. App. Lexis 21449, 1998 WL 556524 (9th Cir.). [1998 FP 172]
     Federal court in Tennessee applies vicarious liability standards for employers in sexual harassment cases to racial behavior. Booker v. BRAC Systems, 1998 U.S. Dist. Lexis 12962, 67 LW (BNA) 1056 (M.D.Tenn.). [1998 FP 156-7]
     N.J. Supreme Court holds that a single remark can create a hostile work environment. The sheriff called a black woman officer a "jungle bunny," causing her to suffer severe stress. Taylor v. Metzger, 706 A.2d 685, 1998 N.J. Lexis 92, 76 FEP Cases (BNA) 58. [1998 FP 76-7]
     Arbitrator sustains termination of a corrections officer that repeated a racist joke over a prison audio system. Ohio and O.C.S.E.A. L-11, 35 (1744) G.E.R.R. (BNA) 1606 (Feldman, 1997). [1998 FP 38]
     Tiny San Francisco suburb pays $90,000 to three police employees who were offended by O. J. Simpson jokes posted on the dept. bulletin board by the Chief of Police. Avedano et al v. City of Belvedere, 7/6/96 S.F. Examiner A12, 7/7/96 S.F. Chronicle A20 (On-line editions). [1997 FP 25-6]
     City of Los Angeles pays $430,000 to a black police officer who claimed retaliation and harassment, following her public criticism of fellow officers for their racial attitudes and discrimination. Bouey v. City of Los Angeles, L.A. Co. Super.Ct. BC110011; 109 (241) L.A.D.J. 3 (stlmt. summ.); Mar. 13, 1996 L.A. Times p. B-1. [1997 FP 29-30]
     Eight black Las Vegas firefighters recover $640,000 for enduring a racially hostile work environment. Prof. Black F/F v. Clark Co., #CV-S-86-1214 (MJL), 34 (1691) G.E.R.R. (BNA) 1635 (D.Nev. 1996). [1997 FP 12]
     Appellate court upholds an injunction prohibiting a supervisor's continued use of ethnic insults in the workplace. Aguilar v. Avis Rent-a- Car, 53 Cal.Rptr.2d 599, 1996 Cal.App. Lexis 471. [1996 FP 124-5]
     New Jersey agrees to pay $3,740,000 to end suit alleging harassment of black corrections officers. New procedures and monitoring ordered. Holland v. N.J. Dept. Corrections, #93-1683, 34 (1655) G.E.R.R. (BNA) 324 (D.N.J. 1966). [1996 FP 91]
     FBI and publisher agree to pay $50,000 to black ex-agent who alleged harassment, retaliation and defamation. Rochon v. Simon & Schuster, 140 (135) Chgo. D. Law Bull. 1 (1994). [1994 FP 154]
     Federal appeals court affirms $40,000 damage award against a police chief in a suit by a black officer who proved discriminatory treatment. Pressley v. Haeger, 977 F.2d 295 (7th Cir. 1992). [1993 FP 92-3]
     Federal appeals court declines to find that calling another employee a "white token faggot" is racist, but "nigger" is a racist remark. Calling older employees "old farts" or "old bastards" is not direct evidence of discrimination. Young v. City of Houston, 906 F.2d 177 (5th Cir. 1990).
     Black FBI agent could bring suit against white agents for conspiring to violate his civil rights. Plaintiff alleged ethnic slurs, anonymous threats, receipt of unordered merchandise and a "fart contest" in front of and directed to his wife. Rochon v. Dillon, #87-C-9574, 713 F.Supp. 1167, 1989 U.S. Dist. Lexis 5164, 49 FEP Cases (BNA) 1481 (N.D. Ill. 1989).
     Circulation of photocopied forms entitled "Nigger Application for Employment" and a "Black Intelligence Test" deeply offended a black officer. Jury award of $35,000 was supported by evidence. Ways v. City of Lincoln, 871 F.2d 750 (8th Cir. 1989).
     Arbitrator reduces a 5-day suspension to a written reprimand for prison officer who called a coworker a "nigger" and other names, and is ordered to make a personal apology for the slur, thank him for his restraint. Fed. Bur. of Prisons and AFGE L-1145 & L-1945, 91 LA (BNA) 276, FMCS #88/11242 (Statham, 1988). {N/R}
     Federal court awards worker $3.5 million for racial harassment; employer tolerated on-the-job animosity. Vance v. Southern Bell Tel., U.S. Dist. Ct. #86-227-CIV, 30 ATLA L. Rep. 261 (N.D. Fla. 1987).
     Federal court issues an injunction requiring a prison warden to "forbid the use by correction officers on any County property and on all County business of epithets such as nigger, Pollack, kike, spic, guinea, honky, Mick, coon and black bitch (all of which have been used on the job by correction officers in recent years)." Snell v. Suffolk County, 611 F.Supp. 521, -525, -532. (E.D.N.Y. 1985). Federal appeals court affirms judgments for black guards subjected to racist remarks by white guards. Snell v. Suffolk Co., 782 F.2d 1094 (2d Cir. 1986).
     Widow of black fire employee entitled to recover damages against supervisors for continued racial harassment; city not liable as asst. chief took corrective action. Hamilton v. Rodgers, 783 F.2d 1306, 40 FEP Cases 453 (5th Cir. 1986); 573 Supp. 452 (S.D. Tex. 1982) modified.
     Federal appeals court criticizes harassment of black employees, but refuses to find a civil rights violation. Gilbert v. City of Little Rock, 722 F.2d 1390 (8th Cir. 1983).
     Federal court awards black police leader $386,238 and Afro American Police League another $158,925. Chicago police officials allegedly violated their First Amendment rights. Robinson v. City of Chicago, U.S. Dist. Ct. (N.D. Ill. 1983).
     Employer is liable for supervisor's failure to reduce racial harassment; AWOL minority firefighter could not be discharged if his absence was provoked by reasonable fears of harm. DeGrace v. Rumsfeld, Sec'y of Defense, 614 F.2d 796 (1st Cir. 1980).
     Forced to quit his job, black employee awarded $395,000 in damages. Irving v. Dubuque Packing Co., U.S. Dist. Ct. #78-1378 (D.Iowa 1980), 23 ATLA L. Rep. 403.
     See also: Disciplinary Punishment; Sexual Harassment.

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