By Joy P. Waltemath, J.D. I’m old enough to remember that it was Art Linkletter who popularized the “kids say the darndest things” concept in his radio and TV shows (and in a 1957 book by that name). Workplace situations seem to elicit some of the “darndest” responses from supervisors, remarks that at the very least got their employers into litigation and often resulted in liability. Here are some of 2016’s freshest examples of foot-in-mouth supervisors: Confidentiality Supervisor shares firefighter’s PTSD diagnosis. Aa firefighter, still active in the Selected Marine Corps Reserve after having served eight years, disclosed his PTSD during a supervisor-initiated fitness-for-duty evaluation (clearly a medical exam covered by ADA confidentiality requirements). Two days later, his supervisor held a meeting to discuss the employee “having PTSD and [to] get the opinion of other firefighters.” Temporal proximity between the exam and the meeting, coupled with the alleged purpose of the meeting, made it plausible that the supervisor wrongly disclosed information obtained through the authorized medical inquiry (Perez v. Denver Fire Department City and County of Denver, D. Colo.). Age bias “Too old to cry.” Repeated comments by an employee’s former supervisor that she was “too slow” and “too old to cry” suggested that her firing was motivated by age bias. Although the employee received only one informal disciplinary notice during her first 20 years on the job, during her last two years she received 26 informal employee discussions, two verbal warnings, two written warnings, and three 90-day action plans, a dramatic increase in disciplinary actions that she claimed was the result of age bias by her latest supervisor. She also alleged her supervisor said she was “too old to act like [she] was acting.” which, combined with evidence that at least one other younger employee who made substantially similar errors was not disciplined, supported an inference of age bias (Sampson v. Sisters of Mercy of Willard, Ohio, N.D. Ohio). National origin bias You’re “a turkey from Turkey?” A teacher in a gifted and talented elementary education program claimed her new principal encouraged a culture of racial and ethnic insensitivity. While the staff was discussing an American movie, the principal told her, “You wouldn’t know about this. You are not from here.” After an after-school Christmas concert in which the teacher’s child participated, the principal asked, “What are you doing here?” Another staff member called her “a turkey from Turkey.” The principal and her staff also made insensitive remarks about other nationalities, referring to a Vietnamese family as the “little people,” joking about an Asian family’s surname, and making announcements over the intercom in feigned foreign accents and laughing. When the teacher complained, the principal issued her three disciplinary letters. A jury could reasonably conclude she was subjected to sufficiently severe or pervasive conduct due to her nationality based on these comments (Unal v. Los Alamos Public Schools, 10th Cir.). Supervisors can’t even get his nationality right. The only non-white employee on his team, a nuclear plant’s Asian security supervisor was regularly subjected to slurs based on his race and national origin by both coworkers and supervisors. He was called “porch monkey,” “towel head,” “Taliban,” “Mexican,” “Jap,” “chink,” and “Hajji.” His supervisor’s boss referred to him as “Mexican” or “Puerto Rican” even though he had told him that he was Asian. He asked that boss to tell other managers to use his name rather than racial references and reported specific racial slurs used against him, but the boss changed the subject. Evidence that he was treated dissimilarly and subjected to racial slurs was enough to refute his employer’s contention that it legitimately fired him for taking too long to report that a subordinate may have nodded off on the job (Schumann v. G4S Secure Solutions (USA) Inc. dba G4S Regulated Security Solutions, D. Minn.). Race bias “It’s disgusting that you two are together.” Remarks by supervisors that the interracial relationship of two correctional officers was “disgusting” and “sickening,” as well as allegations that certain workplace policies were only enforced against the couple after they started dating but were not enforced against other COs, were enough to support disparate treatment and hostile work environment claims. In addition to numerous examples of disparate discipline, a lieutenant told the female CO “you know if your white ass gets pregnant by him he’s just going to leave you and have nothing to do with the kid. That’s what black men do . . . . Why are you with him? It’s disgusting that you two are together.” A captain told the female CO it “sickened” her to see the two together and later said she would not tolerate the relationship, and that she treated the employee that way because she was trying to show “how the real world works when dealing with a black man.” After the two filed administrative charges with the EEOC, the male CO was issued more discipline and the female CO was terminated (Autrey v. State of Maryland, D. Md.). “An African-American should not have been hired to work in sales.” A CFMOTO Powersport regional sales manager who was hired after a phone interview with its CEO, but who claimed management decided to fire him once they learned he was black, advanced his claims of race bias. He lived in Kentucky and was soon sent for training in Minnesota, where the company’s executives worked and where the CFO and operations manager learned for the first time that he was black. Comments that “an African-American should not have been hired to work in sales” and that “a black person cannot sell power sports in the South” were direct evidence of bias. A white sales rep allegedly complained to the CEO that the employee should not have been hired because “black people did not buy mopeds and ATVs” and that “black people do not ride ATV’s [and] do not come to shows.” He was ultimately terminated by the CEO. The court rejected the contention that the comments by the CFO and sales rep were stray remarks by non-decisionmakers (Wilson v. CFMOTO Powersports, Inc., D. Minn.). “N-word” and “b-word.” Despite an employee’s poor performance, her supervisors’ racially demeaning, derogatory, and offensive remarks supported her discrimination claim. Remarks by two Caucasian supervisors calling her “an old ni**er b*tch,” a “stupid b*tch,” and an “old black b*tch” resulted in a city being denied summary judgment on her race discrimination and retaliation claims, even though the employee had been disciplined 25 times in 18 years for poor performance. Also, when the employee asked why she was the only one getting suspended, one of the foul-mouthed supervisors allegedly responded “As long as you keep filing charges, I’ll keep suspending you” (Cage v. City of Chicago, N.D. Ill.). Religious bias “Your religion is less than my religion.” A Catholic farmworker survived summary judgment on his claim that his Mormon foreman harassed him based on religion by making almost daily statements such as “I’m a better person than you guys because your religion is less than my religion,” “Your religion is nothing, less than my religion,” or “I’m a better person than you guys because your religion is less than my religion,” or “You are less than me. I have a better job than you guys. I’m a Mormon and you guys are less than me,” or “My religion is on top. We are better than anyone else.” Although his employer suggested this alleged harassment was not severe or pervasive, the foreman was a type of supervisor, reasonable people might find this offensive, and most importantly, the farmworker estimated that there were roughly 60 such statements (four comments a day for 15 days), which the court found “more than sporadic, it is a pattern of routine conduct” (Robles v. Agreserves, Inc., E.D. Cal.). Sex bias It is no longer news that the EEOC filed its first two sexual orientation discrimination lawsuits in March 2016. And it’s no secret that the agency has been working for several years toward clearly establishing that sexual orientation discrimination offends Title VII. Although no judicial decisions have been reached on these EEOC “test cases,” it’s illustrative for employers to take a look at the alleged supervisor comments that the agency found particularly egregious. “F***ing queer can’t do your job.” According to the EEOC complaint, a gay male telemarketer for a clinic was repeatedly referred to by his manager as “fag,” “faggot,” “f***ing faggot,” “queer,” and told “f***ing queer can’t do your job.” The manager allegedly made these highly offensive comments to the employee at least three to four times a week. When the telemarketer complained, the clinic director allegedly said that the manager was “just doing his job,” and refused to take any action to stop the harassment (EEOC v. Scott Medical Center, is case No. 2:16-cv-00225-CB). “I want to turn you back into a woman.” In the second lawsuit, a lesbian forklift operator allegedly was harassed by her supervisor, who made repeated comments such as “I want to turn you back into a woman”; “I want you to like men again”; “You would look good in a dress”; “Are you a girl or a man;” and “You don’t have any breasts.” Although the employee purportedly complained to the general manager and called the employee hotline, the company first tried to force the employee to resign and fired her just a few days later, allegedly in retaliation for making the complaints (EEOC v. Pallet Companies dba IFCO Systems, case No. 1:16-cv-00595-RDB). The ones they got away with … Not every patently offensive, rude, or simply mean comment is actionable, of course. Still, the remarks made by supervisors reflected below got their employers dragged into court and came very close to crossing the line. After all, you don’t want a federal appeals court calling your company management’s behavior “inexcusable and offensive.” “Inexcusable, offensive” comments … but not actionable. According to three female pharmaceutical sales reps who worked at Eli Lilly, their direct supervisor engaged in conduct described by the district court below as “inexcusable and offensive:” He said he majored in home economics to be around women, remarked on the appearance of female reps and referred to them as “Barbie dolls,” mocked the accent of a Hispanic employee in front of all district employees, said that “black people do not speak fast” during a role-playing exercise, said “let’s let the pretty girls go first” during a group activity, made offensive comments about an employee breastfeeding her child, and criticized an employee for asking for time off to care for her sick child. However, the court found that the incidents “did not unreasonably interfere” with the employees’ ability to do their jobs and so were not sufficiently severe or pervasive to create a hostile work environment (Tourtellotte v. Eli Lilly and Co., 3d Cir.). “Monkey,” “take your black behind and go clean tables.” Despite allegedly being called “monkey” by one manager and told by another manager to take his “black behind and go clean tables,” a federal district court in Georgia dismissed a restaurant busser’s Title VII hostile work environment claim on summary judgment. The alleged harassing conduct was “simply too infrequent” and not sufficiently severe to be actionable, since there were only four comments over approximately 11 months. The court considered the remarks merely “unpleasant,” and not physically threatening or “particularly humiliating”—not enough to be found objectively severe (Lang v. Bloomin’ Brands, Inc., S.D. Ga.). Lesson for managers. It never hurts to remind supervisors that treating employees, even (especially?) poor-performing or difficult employees, with dignity and respect is a time-honored approach to good employee relations. In addition, racist and sexist language simply has no place in the workplace, whether or not it is actionable under federal or state discrimination laws. Finally, consider supervisor training: It is entirely possible that front line supervisors have either never been trained, or have not been trained recently, in what kind of language to avoid.
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