Labor & Employment Law Daily No bias claim for Native American repeatedly exposed to Redskins name and logo at federal agency job
Monday, July 30, 2018

No bias claim for Native American repeatedly exposed to Redskins name and logo at federal agency job

By Kathleen Kapusta, J.D.

Although there is much debate over whether “Redskins” and similar team nicknames are offensive racial slurs, Title VII does not require employers to “stand aggressively on one side of that public debate by banning employees from referring to their local professional football team by name in the workplace,” a federal court in the District of Columbia stated, dismissing a Native American’s race discrimination claim against her federal agency employer. Her claim that the agency retaliated against her after she raised concerns about her coworkers’ support for the Redskins survived in part (Tallbear v. Perry, July 24, 2018, Friedrich, D.).

The attorney advisor in the Department of Energy’s Office of Economic Impact and Diversity served for several years as lead for tribal and Native American engagement and, in that role, gave numerous presentations on race and bias issues, including “What can a critical look at Indian mascots teach us about uncovering bias in ourselves and others?” She alleged that while working at the DOE, she was “repeatedly exposed” to the Washington Redskins name and logo, from “posters placed in common areas by DOE employees” to “clothing worn by employees” and “causal and widespread use” of the term in her presence.

Redskin tie and flyer. Specifically, she claimed that in February 2012 a DOE leadership trainer wore a Redskins tie and mentioned the Redskins during a presentation and 10 months later, a DOE attorney left a “Redskins Special” flyer from a sandwich shop on her desk. She also alleged that Native Americans were not included in diversity training and that the DOE did not offered “cultural sensitivity training” on Native American issues.

The employee considered the term “Redskins” a racial slur and told DOE leadership this on multiple occasions. In March 2013, she wrote a memo to her boss and two DOE deputy directors asserting that the agency was fostering a hostile work environment that caused her anxiety and depression. The DOE’s Office of General Counsel, however, found no legal basis to ban Redskins paraphernalia and did not advise providing sensitivity training on the issues she raised.

Native American Heritage month. In October, her boss reacted negatively to the employee’s decision to accept invitations to speak at other federal agencies on race and bias during Native American Heritage events. That same month, her boss postponed the employee’s attendance at a federal training program and allegedly began to remove her from her policy lead position and exclude her from meetings, briefings with senior leadership, and other assignments. The next month, many of her responsibilities were purportedly reassigned to a less experienced staff member, and in December she was reassigned to the DOE’s Office of Civil Rights to process Title VII complains, which she characterized as a de facto demotion.

Discrimination. Dismissing the employee’s race discrimination claim, in which she alleged she was present when the Redskins name was repeatedly referred to and when Redskins symbols were visible in the workplace, the court found she did not plead facts with enough specificity to allow it to draw a reasonable inference that she faced “discrimination based on race.” It would be different, said the court, if her supervisors or coworkers had directed their use of the term Redskins at the employee in a derisive manner, such as calling her “Redskin” with enough regularity to create an abusive environment.

Instead, her coworkers used the word to refer to their local professional football team and no reasonable person would conclude that they were using it as a racial slur. “Likewise,” said the court, “a reasonable person observing a coworker’s Redskins necktie would conclude not that the coworker meant to disparage anyone but that the coworker wished to express support for the football team.” Similarly, a reasonable person would not conclude that the one-time placement on the employee’s desk of a fast-food flyer advertising the Redskins was motivated by discriminatory ridicule. Because the complaint indicated that her coworkers used the Redskins term and logo not as a slur but in reference to the football team, her claim was dismissed.

Retaliation. Turning to the employee’s retaliation claim, the court first found that her presentations at the DOE and other agencies were not statutorily protected activity as she did not oppose any discrete practice or suggest that the DOE unlawfully discriminated against her or others. Rather, her talks were more like “job-related policy discussions,” than opposition to a particular DOE policy. Nor was her notification to her boss in October 2015 that she had accepted engagements at other agencies during which she planned to speak about issues of race statutorily protected activity as she planned to speak generally about the challenges of achieving “Native American inclusion in the federal workplace” and “stereotypical depictions of Native American […] mascots.”

And while her 2013 memo to her boss, in which she asserted that the DOE was fostering a hostile work environment, was protected activity, she failed to allege a causal link between that and other communications to agency leaders to an adverse action. Specifically, the closest purported protected communication, which occurred in February 2015, was more than eight months before the postponement of her training, the removal from the policy lead position, and her exclusion from meetings and assignments, which was insufficient to form the basis for a temporal-proximity inference.

But the employee also filed administrative complaints in December 2015 and March 2016, which the DOE conceded were statutorily protected activities. Further, she alleged that shortly after filing these complaints, the DOE thwarted several opportunities to work temporarily for other agencies and excluded her from two meetings that fell within her job responsibilities. “This is enough to survive a motion to dismiss,” said the court, allowing her claim to advance as to this allegation only.

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