Let’s start with the ending, in granting a very rare partial motion for summary judgment in favor of plaintiffs, Judge Kimball wrote that the conduct of Holmes & Holmes Industrial, Inc. (“Holmes”), a construction company, was “constitutionally offensive in any setting” and concluded that this “is a rare case where there is no dispute as to the pervasiveness of the conduct in question. No reasonable jury could find that a reasonable African-American would not be offended by this conduct.” The court further held: “No reasonable jury could conclude that a reasonable African-American would not be offended, even in a blue collar setting, by the daily use of the word ‘nigger’ and other racial jokes/comments by white supervisors.”
Before we get to the case, although this is a good win, I think that the attorneys handling this for the Equal Employment Opportunity Commission made a big mistake. They went for a win by law from the Court. Why is this wrong? Under the following facts, I would want all of these facts before a jury. As you read further, picture jurors listening to the facts and how each subsequent event would affect how much money would be awarded.
The employees, James Buie, Antonio Bratcher and Joby Bratcher, are African Americans.
Arrington admittedly told all Holmes employees, he “not to nigger rig their jobs.” For obvious reasons, the Bratchers and Buie opposed and complained of such language. Despite the undisputed complaints, there was no investigation into Arrington’s “nigger rigging” comment. Arrington was not reprimanded in any fashion.
Shortly thereafter, supervisor Scott “Tiny” Pixton, who is white, said “I’m not listening to this nigger jig” regarding rap music that was playing in a van transporting the employees to a job site. Recognizing that this may have been a problem, Tiny tried to explain to Antonio by explaining that “there is a difference between Niggers and blacks, Mexicans and spics, but I see you as a black man.” No investigation or discipline occurred.
When the van arrived at the work site, another supervisor, Clayton Firth, who is white, made these jokes: “(1)What do niggers call a white person on the job site? Boss;” (2) “what are niggers most scared of? White sheets;” (3) “why don’t niggers like trees? Because they are used to hanging from them;” (4) “what do you call a KKK barbeque? A nigger roast;” and (5) “do you know how nigger babies are here on earth? God takes bats and rips the tails off of them and sends them down here.” Again, no investigation or discipline.
Later, Paul Facer, the highest ranking official at the job site, repeatedly referred to a wide nose as a “nigger nose” and used the term “monkey” to refer to Joby or Antonio Bratcher.
Ron and Mike Holmes, the owners of Holmes, both admit they would not be surprised to learn that Facer was using the word “nigger” loosely at the work site. Ron Holmes also admits that he would not be surprised if he heard that Paul Facer was using the word “nigger” three to four times a week, or any other ethnic slur.
After complaining about the racial slurs, Facer told Joby that “Antonio is trying to get me in trouble for this nigger shit.” Nonetheless, Facer went back to using racial slurs, such as calling the black employees “niggers.”
The continued complaints of the Bratcher and Buie continued to have no impact.
So how do you defend such conduct? If I was on the defense side, I would admit liability quickly and try and settle as cheaply as possible. But, here, Holmes argued that the Bratchers and Buie were not bothered by their manager’s racist conduct because they were “all friends,” and attended certain events outside of work together. That one did not work.
So Holmes went to the argument that such conduct could not create a hostile environment because they African Americans continued to perform well: “Nonetheless, Defendants assert that the conduct did not alter the conditions of the Bratchers’ and Buie’s employment. Defendants claim that there is evidence that the conduct did not unreasonably interfere with the Plaintiffs’ performance while employed at Holmes & Holmes. Several employees testified that Plaintiffs were good workers with good attitudes who did not struggle to perform. During the time of the conduct in question, Plaintiffs were promoted and received pay increases. Title VII, however, does not require a victim’s work performance to suffer. The fact that Plaintiffs continued to be good workers in the face of the insults is not the test for finding a hostile environment. The test is whether the working conditions have been ‘discriminatorily altered.’”
My favorite defense was this: “Defendants assert that Facer did not use the terms as slurs but, rather, as terms of endearment.” That’s like telling your wife that calling her fat was meant as a compliment.
Up next, Holmes argues that the use of the N-word by white supervisors could not be offensive to these black employees because they used and voluntarily listened to the word “nigga” in rap music. Again, another loser: “the word ‘nigga’ outside the work place and in the context of their music is completely irrelevant to whether Defendants subjected them to a racially discriminatory hostile work environment.”
Following in the line of train wreck defenses, Holmes then argued that the African American workers should not be allowed to recover because they laughed at the jokes and thus, participated in created the hostile work environment. The court rejected this too: “the fact that black employees also may have spoken the term ‘nigger’ does not mitigate the harm caused by [the supervisor’s] use of that epithet; a supervisor’s use of the term impacts the work environment far more severely than use by co-equals.…Defendants cannot blame the victims for the harassment inflicted upon them by Defendant’s management. Many victims will attempt to alleviate the tension of the situation by merely going along with a supervisor. Such conduct would not be sufficient to override specific complaints that the supervisor’s conduct was unwelcome or offensive.”
Holmes also pointed to their anti-discrimination policy, but the Court held such policy was “unreasonable as a matter of law” because it did not specifically mention racial harassment, and it required employees to file a complaint with the very supervisor acting in a racially hostile manner.
Then in a last ditch effort, Holmes argued that the complaint should be dismissed because the plaintiffs lied and committed perjury by denying being friends with Facer. Another swing and miss: “The court concludes that Defendants’ motion is wholly without merit. The court is more inclined to sanction Defendants’ for bringing the motion than it is to grant the motion. The court discourages such aggressive litigation tactics as they are a waste of the parties’ and court’s time and resources. The fact that Facer and Pixton dispute the Bratchers’ testimony does not mean that the Bratchers are lying any more than it means that Facer and Pixton are lying.”
In the end, however, the trial court concluded that there was a question of fact – even a slight one – regarding whether black employees were actually offended, and held that issue open for the jury. Again, I think that the EEOC lawyers backed into this more beneficial position and that the judge did them a favor.
With the threat of a jury looming, the case settled for $230,000. I do not think that this is enough … do you. What most people do not realize is that by filing a claim through the EEOC, they lose the right to control the litigation and how much it settles for. The EEOC decides all. But, when you go to employment discrimination attorneys, you get to decide when and for how much your case settles. Very big difference.
If you feel that you are being discriminated based on your race, whatever race that may be, then call the right attorney. Race discrimination includes being harassed, fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, and denied wages. When you call the right attorney to schedule a free and confidential consultation at 866-797-6040, you will meet with an attorney from Spitz, The Employee’s Law Firm who will help you determine the best way to pursue your legal claims.
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