Labor & Employment Law Daily Postal employee banned from wearing ‘MAGA’ hat advances race bias claim
Friday, May 14, 2021

Postal employee banned from wearing ‘MAGA’ hat advances race bias claim

By Wayne D. Garris Jr., J.D.

The Caucasian employee alleged that an African-American coworker regularly violated the dress code but was never disciplined.

A federal district court in Kentucky declined to dismiss the race discrimination claims of a white USPS employee who alleged that the postal service enforced its dress code in a discriminatory manner. According to the employee, an African-American coworker cursed at him and called him a racist after he wore a “Make America Great Again” hat to work and a supervisor told him he would be escorted from the premises if he wore the hat again. The court found the employee’s allegation an African-American coworker regularly violated the employer’s dress code but was never disciplined or threatened with discipline was sufficient to avoid dismissal of his Title VII reverse race discrimination claim. However, USPS was entitled to dismissal of the employee’s religious hostile work environment claim because his coworker made only one comment about his religion during a five-month span (Halbauer v. DeJoy, May 10, 2021, Stivers, G.).

The employee worked as a mail carrier for the USPS in Louisville, Kentucky. He alleged that an African-American coworker yelled, cursed at him, and called him a racist when he showed up to work wearing a “Make America Great Again” hat. When a union steward asked the coworker to stop yelling, she responded with profanity. The employee also alleged that after he clocked in, a supervisor told him that if he wore the hat again, he would “escort him from the premises.”

A week later, the employee alleged, his coworker wore a hat to work and refused to remove it, showed up to work out of uniform, and work sneakers in violation of the employer’s policy. Each time, the coworker refused to adhere to the dress code and the employee’s supervisor did not take any action. On the other hand, the employee, and other white workers, were purportedly forced to change into leather shoes, as required by the dress code, if they showed up to work in sneakers.

Offensive language. The employee also claimed the coworker used vulgar and offensive language toward other employees and the supervisor. On one occasion, the employee asked the supervisor to stop the coworker from “uttering blasphemy” as it offended him. The employee then notified the Louisville Postmaster about the coworker’s conduct, the unequal enforcement of the dress code, and management’s failure to take any action, but to no avail.

Lawsuit. As a result of the discrimination, religious harassment, and abusive language, the employee claimed he could no longer work for USPS and that he had to quit his job and enter counseling. He filed suit alleging race discrimination and hostile work environment based on religion in violation of Title VII. The employer moved to dismiss all claims.

Discrimination. According to the employee, although other white employees engaged in conduct like coworker’s, they were disciplined for it and some were terminated. He also alleged that he and others were forced to change when they violated the dress code, but the coworker violated the dress code without consequence. And while they complained about the coworkers’ abusive language, no action was taken. The court found the employee plausibly alleged that “background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

Adverse action. The employee provided a doctor’s note that excused him from wearing the required leather shoes for work. The court explained that it was plausible that given his job as a mail carrier, the ability to wear non-regulation shoes was a material benefit of his employment. Thus, he plausibly alleged that removal of the accommodation resulted in a change in job conditions that was more than de minimis.

Similarly situated. At the motion to dismiss stage, the employee sufficiently alleged that he and his coworker were similarly situated. They were both mail carriers at the same workplace, with the same supervisors, but allegedly only the coworker could violate the dress code by wearing sneakers. It was not clear from the complaint whether the same supervisor was involved in each incident, but this was not enough to warrant dismissal.

Hostile work environment. However, the employee failed to allege that most of the coworker’s abusive language was based on his religion. The complaint asserted that the coworker used offensive language and many employees complained about her, but there was no indication that the foul language was based on the employee’s religion. Even though the employee claimed that he resigned from his job and entered counseling because of the coworker’s language, the coworker only made one comment about the employee’s religion in a five-month span. Thus, he failed to allege an objectively hostile work environment.

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