Employment Law Daily Despite being called ‘monkey,’ other racial comments, busser’s harassment was not actionable
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Wednesday, February 17, 2016

Despite being called ‘monkey,’ other racial comments, busser’s harassment was not actionable

By Dave Strausfeld, J.D. A busser at a restaurant was unable to show he was subjected to severe or pervasive harassment despite allegedly being referred to by a manager as “monkey” and being told by another manager to take his “black behind and go clean tables,” held a federal district court in Georgia, dismissing his Title VII hostile work environment claim on summary judgment. The alleged harassing conduct was “simply too infrequent” and not sufficiently severe to be actionable. Also, the restaurant did not retaliate against him for his complaints by opposing his application for unemployment benefits (Lang v. Bloomin’ Brands, Inc., February 9, 2016, Moore, W.). The busser was employed at an Outback Steakhouse in downtown Savannah, Georgia. In holding that the alleged harassment he experienced was not severe or pervasive, the court evaluated four factors. Frequency. The first factor was frequency, and there were no more than four racial comments, the court found. Besides the two remarks already mentioned that were made by managers, one coworker allegedly said “Yeah, you earn that paycheck, boy.” Also, white wait staff allegedly would make comments when African-American patrons came into the restaurant about the dining room “getting dark.” Despite this, and even taking account of the busser’s allegations that managers would get “aggressive” with him, the court was “unable to conclude that these isolated incidents” over the course of approximately 11 months rendered the conduct frequent. (The court appeared not to count the busser’s other allegations, such as that African Americans were assigned to multiple jobs but their Caucasian counterparts were not.) Severity. Next, the court considered the severity of the incidents, noting that under Supreme Court and Eleventh Circuit precedent, a hostile work environment is created only when the workplace is “permeated with discriminatory intimidation, ridicule and insult.” Here, the racial remarks and other evidence did not rise to this level because “While these events may be unpleasant, Title VII does not impose a general civility code.” And the court was “hard pressed to impose liability for comments occasionally made by wait staff” about African-American patrons, when those comments were not directed toward the busser himself. Whether threatening or humiliating. As to the third factor, the alleged offensive conduct was not physically threatening or “particularly humiliating.” While the busser complained of “aggression,” there was no indication he felt physically threatened or that the aggressive conduct was related to his race. Consequently, this factor weighed against finding the harassment objectively severe. Interference with job performance. With regard to the final factor, even assuming for the sake of argument that the offensive conduct interfered with the busser’s job performance, the remaining three factors all weighed in favor of finding no actionable HWE. That is, the “harassing conduct was simply too infrequent; did not permeate the workplace with discriminatory intimidation, ridicule, and insult; and was not physically threatening or humiliating,” so the court dismissed the HWE claim on summary judgment. Retaliation by opposing unemployment benefits. On a separate claim, the busser alleged that the restaurant retaliated against him by opposing his application for unemployment benefits. But the restaurant had a legal right to inform the unemployment board that it terminated him for a violation of company policy. There was no evidence that the restaurant’s “legally mandated participation” in the unemployment benefits review was either related to the busser’s complaints or constituted an unlawful employment action, so that claim could not survive summary judgment.

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