Employment Law Daily Employee's Facebook jokes on race stereotypes relevant to her claim of racially hostile environment
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Wednesday, July 13, 2016

Employee's Facebook jokes on race stereotypes relevant to her claim of racially hostile environment

By Lorene D. Park, J.D. An African-American employee who claimed her coworkers’ racist remarks, management’s inaction, and subsequent retaliation violated Title VII, Section 1981, and state law, was denied her motion in limine to exclude her Facebook page, titled "You know yo ass is from da hood when." While prejudicial to her case, the page and posts she made joked about racial stereotypes, and were relevant to whether she joined in similar "workplace banter" and whether coworker remarks were unwelcome or offensive, explained the federal district court in Pennsylvania. The court also denied in part the employer’s motions in limine concerning "me-too" testimony by another African-American worker and evidence of corporate culture, including a change in ownership (Bryant v. Wilkes-Barre Hospital Co., LLC, July 6, 2016, Mannion, M.). Banter or hostility? According to the hospital employee, her coworkers made racial comments and jokes about her in the workplace. For example, on several occasions, a coworker allegedly asked her why she always says "aks," "birfday," and "bafroom." Despite her objections, the remarks continued and the employee complained to management, but nothing was done. Thereafter, other employees stopped speaking to her and refused to give her documentation necessary to do her job. She eventually resigned. Motions in limine. The employee sued for race discrimination, hostile work environment, and retaliation under Title VII, Section 1981, and Pennsylvania law. As the case moved toward trial, both parties filed motions in limine, each of which sought to exclude evidence as irrelevant. Alternatively, they argued that any probative value was substantially outweighed by the danger of unfair prejudice, confusing the issues, or misleading the jury. Employee’s Facebook posts come in. The subject of the employee’s motion was a Facebook page she created with her sister, which was titled "You know yo ass is from da hood when." She testified that the purpose of the group page was "[b]asically to bring together common stereotypes about African Americans and laugh at them" and, she posted stereotypes which she thought were "funny." She admittedly made posts on the page under her name and the record indicated that she frequently "liked" and "commented" on racial stereotypes making fun of African-Americans. According to the employee, she did not find it offensive when people who were her "peers" made such jokes and comments—that was okay. However, she testified that it would be offensive for someone else to make such comments. She also claimed that her Facebook activity occurred after hours, was unknown to her coworkers, and was irrelevant. Denying her motion, the court found it relevant to whether or not the employee really found her coworkers’ comments on racial stereotypes offensive and whether the comments were "unwelcome." Such evidence could also substantiate the hospital’s assertion that the employee herself participated in, and sometimes initiated, the joking banter she now claimed created a hostile environment. Also, while the court had no doubt that some of the comments would be prejudicial to the employee’s case, it found that under Fed. R. Evid. 403, the probative value of the evidence outweighed the danger of unfair prejudice or confusion of the issues it might cause. "Institutional animus" and change in ownership. The hospital moved to exclude references to whether Community Health Systems (CHS) acquired an ownership interest in the hospital—the employee linked the acquisition to when the hostile environment began. The employer argued that CHS had "four-levels removed indirect ownership" and the acquisition happened 18 months before the employee’s claims accrued, so it had no relevance. The employee responded that the change in ownership was when the inappropriate behavior began, and the code of conduct required reporting violations to CHS, so the acquisition was relevant. She also claimed that the corporate structure provided background concerning the corporate culture allowing a hostile work environment. In the court’s view, CHS’s acquisition was relevant and not unduly prejudicial. The employee was allowed to argue that the existence of "institutional animus" was the reason for supervisors’ inaction to her complaints. The court noted that her supervisors did not inform her that she had to follow certain reporting procedures from the handbook or other protocols, nor did they provide her with contact information or report her complaints to the authorities identified in the Code of Conduct as they were supposed to. In addition, a pharmacology workbook that was used as a training material by the hospital could also come in as evidence of "institutional animus." "Me too" evidence. The employer also moved to exclude testimony by another employee concerning racial comments she overheard or learned about, as well as her opinion of the comments. Denying the motion in part, the court ruled that this employee could testify as to comments she overheard while working at the hospital, but could not testify as to comments that the plaintiff told her about which she did not personally hear, as those would be hearsay. The witness could also testify about her observations of how the employee reacted to the racial comments, including emotional distress. However, the witness could not testify about her own opinion of the comments or how they personally impacted her, because that was irrelevant.

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