Discrimination Laws And The Will Smith Academy Awards Slap

Everyone who isn't on a desert island with no wifi knows that Will Smith slapped Chris Rock after Chris Rock made fun of Jada Pinkett Smith's alopecia. Lots of folks want blood. I hear many demanding that Will Smith's Best Actor Oscar be rescinded. Some say he should be expelled from the Academy. Others say he shouldn't be allowed to attend any more awards.

So let's look at the Academy's actual rules, and how they've handled similar incidents. Here's the rule that Mr. Smith violated:

In addition to achieving excellence in the field of motion picture arts and sciences, members must also behave ethically by upholding the Academy’s values of respect for human dignity, inclusion, and a supportive environment that fosters creativity. There is no place in the Academy for people who abuse their status, power or influence in a manner that violates recognized standards of decency. The Academy is categorically opposed to any form of abuse, harassment or discrimination on the basis of gender, sexual orientation, race, ethnicity, disability, age, religion, or nationality. The Board of Governors believes that these standards are essential to the Academy’s mission and reflective of our values.

The rules go on to say that, in case of a violation, the Board can consider any discipline permitted in their bylaws, including suspension or expulsion. The rules came out in response to #MeToo. It's notable that none of Harvey Weinstein's or Kevin Spacey's awards were rescinded. In fact, to my knowledge no actor has ever had their award rescinded.

First of all, Chris Rock also violated the rule, since he was harassing Jada Pinkett Smith on the basis of a disability, namely, alopecia. And before you tell me it isn't a disability, I assure you that it can be. For those demanding that Mr. Smith be arrested, it is to Mr. Rock's credit that he has declined to prosecute.

Second, there are many, many incidents that have occurred over the years of actors getting into actual fistfights. Not one was subjected to any discipline by the Academy that I've ever heard of. So possibly a private reprimand, but that's it. Here are 15 of the fistfights, a majority between white males. Here's a list of 9 fistfights, also a majority involving white males. So a single slap is a minor incident compared to the fistfights. Any discipline meted out more severe than a reprimand is going to be subject to discrimination claims.

Finally, if you said that Ted Cruz should have punched Donald Trump when Trump insulted Cruz's wife, sit down and shut up. And don't make me check your social media posts. You know who you are. And I bet some Academy Board of Governors members have some posts in that regard. I hope Mr. Smith's lawyers are searching those posts right now just in case.

In sum, yes, Will Smith violated the Academy's standards of conduct (as did Chris Rock). But his discipline should be proportionate to similar actions by non-Black actors and not a knee-jerk public execution. 

How To Prove Race Discrimination In The Workplace

You'd think after Black Lives Matter that people would realize race discrimination still exists. Still, many folks think we had a Black President, so that was the end of race discrimination. It can be difficult to prove race discrimination, but it isn't impossible.

How do you figure out whether you were targeted due to your race? Here are some factors to consider:

• Comments: If your boss makes comments about race, that's direct evidence of race discrimination. Maybe they have made comments complaining about BLM. Or they've posted racist stuff on social media. It doesn't have to be the n-word or anything that blatant. Comments about "the hood" or other more subtle comments about certain areas or people can indicate racism. 
• Different treatment: If you are selected as one of the employees to be laid off but less qualified employees of a different race are kept on, then that is also evidence of race discrimination. Same if you apply for a job. Let's say the position you apply for requires a certification. You have it but the White employee is working to get it. You're more qualified. Seniority can also be a measure of your qualifications. If you've been in the position for 5 years with all good reviews and the promotion is given to an employee of a different race, that could be evidence of race discrimination. 
• Disparate discipline: If you are targeted for discipline for picky things that employees of a different race also do and aren't disciplined for, then that is another sign that you are being targeted due to race. Sometimes, you're given the option of taking a demotion rather than a layoff. If others are offered this option but the Black employees aren't, that could be race discrimination in itself. If you are terminated for something people of a different race have done with only a warning, that is evidence of race discrimination.
• Harassment: If you are being targeted for harassment but employees of a different race are not, that is also evidence of racial harassment. If there are other employees of your same race under the same supervisor, are they also being targeted? 
• Evidence: Remember, your own testimony is evidence. So are your notes. Chats, emails, voice mails, photos, printouts of social media, can also be evidence. If you have witnesses, ask them to write you a note about what happened if you think they will support you. Or if you don't feel comfortable asking, at least keep track of witness names and any contact information you have.

What to do? If you think you've been targeted due to your race, then there are some steps to take.

• Report it: If it's harassment, meaning basically something that doesn't affect your wallet, then you need to report it to HR or management. Look in your handbook to see where it says to report discrimination. The Supreme Court says that if you are being harassed due to your race and don't report it, the employer might not be liable for discriminatory harassment. I suggest putting it in writing. Call it Formal Complaint of Race Discrimination. Then lay out in detail all the ways you are being singled out due to your race. Keep a copy of what you send. That way they can't deny later that you complained about race discrimination. Remember, say the words. Bullying and general harassment aren't illegal.
• Keep good notes: Write down all the comments and ways you've been singled out. Make note of dates, times, and any witnesses. Keep copies of documents, text messages, emails, chats, and other evidence. Take them home or keep them in a purse or briefcase. Don't keep them in your desk or somewhere the employer can take them away from you.
• Contact a lawyer: If you think you're being targeted due to your race, especially if you have been demoted, suspended without pay, or terminated, talk to an employment lawyer in your state. 
• File with EEOC: Filing with EEOC is something you must do before filing a lawsuit under Title VII for race discrimination. Depending on your state, you have 180 days or 300 days to file. You might want to talk to a lawyer before doing so. EEOC can't award you money, but they do have a terrific mediation program, so if your employer agrees to participate it could settle there without the hassle of a lawsuit.

While proving race discrimination can be difficult, if you gather enough evidence and keep good notes, you are well on your way to proving your case.

Customer Heaping Racist Abuse On Employees? Employer Must Stop It Or Risk Suit

The video of the guy heaping abuse on a restaurant's employees for speaking Spanish that went viral made me wonder: what did the restaurant do after this? A company's duty to keep the workplace free of national origin and immigration status harassment extends to protecting its employees from customer abuse and discrimination.

The most common case comes when a customer demands the company engage in discrimination by not assigning people of a particular race or national origin to them. An example would be a hospital patient refusing to be treated by people of a particular race.

But when a customer heaps discriminatory abuse on employees, it is the employer's duty to keep the workplace free of discrimination. The employer now knows about this customer's propensity to discriminate. It now must take prompt action to correct the situation.

But what can an employer do to stop a racist customer? Here are some actions that can be taken in this situation, and I hope the employer did at least some of this:

• Remove the customer: In this case, the manager was one of those being subjected to abuse. Still, the manager would be within her rights to ask the customer to leave and call the police if he refused.
• Ban the customer: Let's say management didn't find out about the situation until after the case. The customer could be banned from the restaurant. In the case of a company where the customer represents a large chunk of sales, it's tempting to let it pass. But the company could be liable for the customer's bad behavior.
• Make sure the customer is accompanied at all times: If the customer is one that is too big to ban, then make sure someone in management is assigned to be with that person at all times they have contact with employees so they can shut down any bad behavior. Let the customer know that further bad behavior will result in banning. Of course, that may be an empty threat if the customer is a major one. Still, the company must stop the bad behavior, even if it means getting rid of an otherwise good customer.

Here's what the company absolutely cannot do:

• Accede to customer wishes: The company cannot allow a customer to demand it engage in discrimination. The answer to the customer who wants only people of a particular race, national origin or religion to deal with them must be a resounding no.
• Retaliate against the employee/victim: The employer must not deal with the problem by firing the employee, assigning them to a less-desirable position, or otherwise retaliating against them for being a victim of discrimination.

If a customer is engaging in this kind of behavior, report it to HR or someone in management. If your employer allows customers to engage in discrimination, sexual harassment, or discriminatory harassment, or retaliates against you for reporting it, contact an employee-side employment lawyer in your state to discuss your rights.

Can You Be Fired For Being A Racist A**hole? Yes. Well, Maybe. Probably.

So, a Twitter campaign has been outing folks who attended the Nazi/white supremacy/alt right rally outside the University of Virginia in which a Nazi murdered a protester and injured many others by plowing into them with a car. Some of those who have been outed were promptly fired. I've been asked whether firing someone for attending a racist rally is legal.

The answer is yes. Well, maybe. Probably. There. Are you happy?

An employer who is aware of an employee's propensity to engage in race or national origin discrimination (or any other kind of discrimination) has a duty to maintain a safe workplace. That means firing or disciplining the worker, or taking other steps to make sure he or she doesn't engage in illegal harassment or discrimination in the workplace. An employer that fails to take action could be liable for punitive damages if the racist employee acts on his/her beliefs at work.

Thus, my initial answer, which is yes, you can be fired for being a racist a**hole. However.

Some states and local governments have laws protecting you from discrimination due to your political affiliation or activities. For instance, California, Colorado, New York, North Dakota and Louisiana say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns. Here in Broward County, it's illegal to fire employees based upon political affiliation. If you work for government, there's the good old First Amendment to protect you. Plus, the Civil Service Reform Act of 1978 prohibits political affiliation/activity discrimination against federal employees.

Thus, my second answer. Maybe. This is one of those situations where two laws rub up against each other. I would think a strong argument could be made that attending a rally like last weekend's would give an employer a legitimate reason other than political affiliation to fire or discipline an employee. Once the employee starts spewing racist stuff in public and waving swastikas, that may well cross a line. Will the courts decide that the employer has a legimate business to protect? Maybe. Even with government employees, the government may well be able to prove that the employee's free speech rights were outweighed by the government's right to efficient and orderly operation.

If, however, the employee has always been respectful to coworkers and customers of color and continues to do so after the rally, maybe the employer doesn't have a legitimate reason other than political affiliation to fire the person.

Still, I default to my third answer, probably. Most states have no legal protection for political firings. So most employees have no legal protection if they attend a racist rally. The employer probably has a duty to protect coworkers and customers from a racist. I suspect most courts will say firing someone for attending a racist rally that turned murderous is perfectly legal, maybe even required.

Noose In Workplace Doesn't Equal Discrimination, Says Court

People look at me like I'm crazy when I tell them that there are multiple cases saying a noose at work does not equal actionable race discrimination. Well, here's another one. This case was shocking even to me because coworkers testified that there had been multiple instances of nooses hung in this workplace. Plus, the employee claimed other instances of being treated differently than non-black employees.

Yet, in this case the 7th Circuit found that the employer did enough by reporting the incident to the police and leaving the rest to them. Here's what the court said:

Employers are strictly liable for supervisor harassment, Williams, 361 F.3d at 1029, but when a plaintiff claims that co-workers are responsible for the harassment, “he must show that his employer has ‘been negligent either in discovering or remedying the harassment,’” id., quoting Mason v. Southern Illinois University, 233 F.3d 1036, 1043 (7th Cir. 2000). There is no evidence that a supervisor was involved in leaving the noose, so Cole must instead present evidence allowing a reasonable jury to find that the university was negligent—which means in this context that it failed to take “prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring,” Erie Foods, 576 F.3d at 636, quoting Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1048 (7th Cir. 2000). A prompt investigation is the first step toward a reasonable corrective action. See Erie Foods, 576 F.3d at 636, citing Lapka, 517 F.3d at 984.  

The undisputed facts here show that once Cole notified Richards of the discovery of the noose, she spoke to him about it (albeit insensitively, we must assume) and delivered her own notes on the incident to the university 16 No. 15-2305 police. She also reported the incident to Nicklas, then vice president of public safety and community relations, as well as Perez and Daurer. She did nothing more after that, but in these circumstances it was reasonable for the administration, having involved the university police, to leave the investigation to them.

The same would apply to a single instance of sexual grabbing, a single racial or other offensive slur, or other coworker harassment.

Bottom line is this: a single incident with a coworker, no matter how serious, is rarely going to equal a lawsuit against your employer. You have to report it under the company's harassment policy and give them a chance to correct the situation. They don't have to fire the person or take any specific action. They only have to assure it won't happen again. They don't have to tell you what action they took. And you can't just refuse to come back to work.

Not my rule. Don't blame me when I tell you that this is what the courts are saying. Talk to your legislators about changing the law. Better yet, vote well on Tuesday.

Does Your Religion Excuse Homophobic, Racist or Sexist Behavior At Work?

When I wrote the piece about Duck Dynasty's Phil Robertson and his suspension for making racist and anti-gay comments in an interview done to promote his show, many readers told me that Mr. Robertson should be protected by religious discrimination laws. After all, the argument went, he was only expressing his religious beliefs about gays.

Bob
Tt is not freedom of speech, it is freedom of RELIGION--what Phil said was congruent with what the Bible says. Violation of the free exercise clause is the issue, not speech. Can you imagine firing an employee because they expressed atheist beliefs or supported Obama and his queer minions?????

Even though employers have to accommodate religious beliefs at work, do religious discrimination laws allow you to express your beliefs that "the gay lifestyle," and gay marriage are sinful? Are you allowed to tell your female coworkers that women belong in the home and should be subordinate to men? Can you dig out old Jeff Davis's views of the Bible to share with your African-American co-workers?

I write about the legal issues involved in determining how much religious expression at work is protected, and when it isn't in my latest article at AOL Jobs.

Employment Law Blog Carnival Mother’s Day Edition

This month’s Employment Law Blog Carnival has lots of posts with great career tips - so good, your mother might give them to you. Although Mother’s Day has passed, it’s never too late to take guidance from mom.

Here’s the best employment law advice a mother can give, in the best employment law blogs a mother could want.  

Don’t Talk To Strangers

Instead of going on reality shows to meet strangers in a misguided attempt to find love, you meet the best mates doing what you enjoy. In Jon Hyman’s post, The Bachelor as discrimination? Publicity stunt lawsuit undermines legitimate discrimination claims, things didn’t go so well looking for love in all the wrong places. If only they’d listened to mom . . .  

Behave Yourself

If you didn’t behave as well as mom wanted (or if your employees didn’t), you might want to read Daniel Schwartz’s post, EEOC Releases Important Guidance on Use of Criminal and Arrest Records By Employers and John Holmquist's post, Asking the question: the EEOC's enforcement guidance on arrests and convictions.

Don’t Make Rude Gestures

Adam Whitney’s post, You’re Damned if You Fire an Employee Who Gives You the Finger tells you what you can (and can’t) do with an employee who loses a finger or flips you the bird.

Work Out Your Problems

John Fullerton's post, FINRA Rule 13803: Compelling Arbitration Claims to be Filed in Court, tells about yet another way employers and employees may work out problems.

If You Can't Say Anything Nice, Don't Say Anything

Ari Rosenstein and Eric Meyer talk about the downsides of social media in Social Media: Useful Tool or Employment Pitfall? and Report: Employees share WAY more Facebook info than they think
If only the people in their posts had listened to Mom.

Study Hard

Sometimes, no matter how hard you study, you won't do well. That's because there's something wrong with the test. In Jacksonville Firefighter Litigation Shows Perils of Using Improperly Validated Tests, George Leonard tells how one test went terribly wrong, and advises employers how to make sure promotion and hiring tests won't be thrown out.

A great example of someone who should have studied harder is in Mark Toth's How to Hire If You Want to Get Fired. Learn what not to do when interviewing candidates in a hilarious what-not-to-do video. Personally, I hope you all interview like this. It will make my job on the employee side way easier.

Mind Your Own Business

Philip Miles and Jessica Miller-Merrill tell us about legislation to keep employers from snooping into employee's passwords in SNOPA - Proposed Federal Legislation on Employer Social Networking Password Requests and US Bill Would Make Employer Requests for Facebook Access Illegal.
MYOB, nosy employers.  

In Reviewing Private Social Media Accounts as a Candidate Screening Tool: Dangerous, even with Policies & Procedures, Shaun Reid warns of the dangers of not listening to mom's good advice about snooping.

Family Is The Most Important Thing

In 6 Steps to Avoid Family Responsibilities Discrimination Claims, Dawn Lomer advises employers how to avoid getting in trouble when employees put family first.

Don't Lie

Mom's advice is particularly good when your lie ruins things for everyone else. If you lie about your need for Family and Medical Leave, you make it harder for everyone who really needs it.  Robin Shea does a terrific analysis of when an employer can fire an employee for lying about FMLA leave in When can an employer fire an employee for medical leave fraud?

Don't Hit

Mom would not be proud of all the boss-directed violence in the game I talk about in my post, Top Reasons Why Kick The Boss Is One of the Top Apps. Or maybe she'd be glad you have an outlet instead of violence.

90% of Life is Showing Up

Okay, that wasn't mom, it was Woody Allen. But as a mom, I tell my kids this all the time. Randy Enochs tells us about the importance of showing up to work, even with a disability, in 9th Circuit Discusses "Attendance" as Essential Function of Job in ADA Claim. [Note to faithful readers - no, you aren't hallucinating. This is a late edition to the ELBC, but a very worthwhile one. Mom would say, "Better late than never." I'm glad Randy decided to show up at ELBC!]


Be an Overachiever

I saved Robert Fitzpatrick for last because he definitely did mom proud this week. He asked me to post three of his posts in ELBC. Bob, you're putting us all to shame. Here they are:

(1) Proposed FederalLegislation to Prohibit Employers from Requiring or Requesting Access to SocialMedia of Employees or Applicants

(2) No Settlement Negotiations Privilege

(3) USERRA and the Escalator Principle

There you have it: all my favorite employment law bloggers in one handy spot. If you read them all, not only will mom be pleased you did your homework, but you'll come away with lots of useful knowledge (unlike when I studied the law against perpetuities).

From everyone here at the Employment Law Blog Carnival, here's hoping you had a wonderful and happy Mother's Day! If you follow all the tips and advice in these blogs, you'll spend way less time in court and have more time to spend with mom.

Does Discrimination Still Exist? Of Course It Does

This piece by David Sirota in Salon struck a nerve with me. He makes the case that race discrimination still exists. Sad, but it's something that needs to be said over and over. I find the issue of whether any kind of discrimination still exists to be a continuing uphill battle when I represent employees in discrimination cases.

Truth be told, when I started handling employment discrimination matters 25 years ago, I figured I'd do it for a few years, then everyone would know the law and I'd have to find something else to do. Here I am, still handling discrimination cases. Instead of seeing them wane, I find that in some ways discrimination has gotten more blatant over the years.

Discrimination Exists

If you don't believe that discrimination exists, here are some facts that prove my point. Read more in The Huffington Post.



Thanks to Gina Misiroglu of Red Room for putting me in touch with the Huffington Post!

Supremes Pretty Consistently Oppose Retaliation

The Supreme Court isn’t exactly known for being pro-employee. But it has been fairly consistently pro-employee in one area: retaliation. Yesterday’s ruling in favor of an employee who complained verbally about a Fair Labor Standards Act (FLSA) violation is just one of a series of recent rulings that demonstrate employers need to beware of retaliating.
Oral complaints are protected: In yesterday’s Kasten v. Saint-Gobain Performance Plastics Corp, the Court found that the anti-retaliation provision of FLSA which applies to people who “file” complaints applies even where the “filing” was purely a verbal complaint.

Retaliation against a fiancé is illegal: Earlier this year, in Thompson v. North American Stainless, LP, the Court ruled that the fiancé of an employee who complained about sex discrimination could bring a retaliation claim when he was fired shortly after she complained. It’s, “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” Yeah. It was pretty obvious, wasn’t it?

You don’t have to be the one who complained to be protected: In 2009, in Crawford v. Metropolitan Government of Nashville, the Court decided an employee who was interviewed in a sexual harassment investigation was protected: “The antiretaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.” Gotta love this one since she won a $1.5 million verdict last year after the case went to trial. Oh, and because the majority opinion referred to the employer’s position as “freakish.” Well, not quite their whole position, but the word “freakish” was used.

Race discrimination statute prohibits retaliation: In 2008, the Court in CBOCS West, Inc. v. Humphries found that 42 U.S.C. § 1981(a post-Civil War race discrimination statute) prohibits retaliation.

Age discrimination statute prohibits retaliation: The same day in 2008, the Court in Gomez-Perez v. Potter, Postmaster General found that the Age Discrimination in Employment Act similarly prohibited retaliation against a federal employee.

Retaliation other than termination is illegal: In 2006, the court decided Burlington Northern v. White said: “We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

So while some other employment laws may be slowly eroding away in favor of employers, the anti-retaliation laws are alive and well. Does this mean employees can run to the courthouse at will now? No. Employees still need to be concerned about retaliation. You need to know your rights before you complain.

Donna’s tips:

a. There is still no law prohibiting an employer from retaliating against you for reporting or objecting to policy violations, ethical violations, bullying, or jerkish behavior. Only if you do something that puts you in a legally protected category are you protected from retaliation. That means objecting to something that’s illegal under a statute such as Family and Medical Leave Act, Title VII, state discrimination laws, wage/hour laws, OSHA violations, or some other legal violation.

b. If you’re thinking about bringing a claim under a whistleblower law, there are lots of hoops you have to jump through, so know your responsibilities and rights under the whistleblower laws before you complain.

c. I did a post about when you should think about reporting coworkers and how to do it. Despite yesterday’s ruling about oral complaints being protected, I still suggest you put your complaint (if it’s a legally-protected complaint) in writing so the employer can’t deny it later.

d. General harassment, hostile environment and bullying are not illegal, so you’re not protected from retaliation if you report them.