Yesterday, I penned a post which argued that Court's should extend anti-harassment protection to White employees alleging racial harassment by Black co-workers. In doing so, I supported part of a New Jersey Superior Court decision, in spite of the fact that the other part was clearly wrong, the part that was under dispute was in my words "a close call," and that the plaintiff in this case was an incredibly unsympathetic figure. But I believed that it was important for Whites to know that racial discrimination remedies were available to them as well, so as to counteract the feeling that anti-racism law and practice is "Blacks versus Whites." I even submitted it to the "erase racism" carnival, being hosted at Ally Work.
Now the 4th Circuit Court of Appeals (the most conservative in the nation) comes down with a 2-1 ruling in Jordan v. Alternative Resources Corp. (H/T: Alliance for Justice). The 4th Circuit has jurisdiction over Maryland, Delaware, Virginia, West Virginia, and the Carolinas, and I regret to say this particular case came out of my home turf of Montgomery County, Maryland.
The facts in this case are twisted. Jordan worked for IBM. As many of you know, the "DC Sniper" was operating in our area, causing much fear and tension. The two snipers (both of whom were Black) were caught while Jordan was at work. One of his fellow employees, seeing the news, proclaimed: "[t]hey should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them." Jordan consulted with several of his other coworkers, who confirmed that this particular employee had made comparable comments many times in the past. Pursuant to IBM policy, which mandated that employees report racial harassment, Jordan filed a complaint. His supervisor responded by changing his work hours to less convenient times, making a derogatory gesture and comment towards him at an office party, and within a month firing him. It does not appear that anyone is seriously arguing that these actions were not retaliatory. Incredibly, the Court found that this did not constitute a retaliatory action in violation of Title VII, because Jordan could not even have reasonably believed that his coworkers action could have created a hostile work environment. To be clear, the protection against retaliation does not only kick in if the conduct would have breached Title VII; all Jordan had to prove was that it was reasonable for him to believed it would have.
The majority placed a lot of emphasis on the supposed "isolated" nature of the remarks, almost seeming to forget that Jordan was told his coworker had made similar remarks on many other occasions. The majority dismisses this by saying that Jordan did not verify times and dates of these "vague" other remarks (which is not pertinent, as the 4th circuit has held that the complaining party has only the duty to report, not launch an independent investigation), and also by saying that these remarks were never reported to management (good thing too, apparently doing that gets you fired!). It said that for Jordan to prevail, he'd have to show that a plan to create a racially discriminatory environment was planned or in motion. The citation was to a case called EEOC v. Navy Fed. Credit Union, 424 F.3d 397 (4th Cir. 2005). In that case, there was literally an elaborate scheme to create a paper trail of negative performance reviews for a Black employee who had been making complaints regarding discrimination, so she could fired. The Court basically said because Jordan's situation had no comparable plan or plan-in-motion, his claim must be rejected. But Navy Federal is obviously an extreme situation, as the dissent noted, bigots can hardly be expected in most cases to announce their plans for discrimination in advance.
The truly perverse thing about this case is, again, that IBM requires its employees to report potentially discriminatory conduct. It does this because, by Supreme Court precedent, having these mechanisms in place means the company has an affirmative defense against any discrimination claims that do come up that went unreported through that system. Basically, if the procedures are in place and an employee does not use those procedures to complain about the alleged conduct, he can't later go to court and sue for the same breaches. But now the 4th circuit has created a catch-22--if an employee complains of discrimination, he can be fired. If he doesn't complain, then he can do nothing.
There are two points to be made off of this case. First, it appears to be wrong as a matter of law. I found the majority wholly unconvincing, and the (rather blistering) dissent to be quite compelling. But assuming for the moment that the ruling was right, that just means the law is wrong. If our anti-discrimination laws can permit this sort of egregious injustice, then our laws are wrong. Wrong in a very visceral, horrifying sense: they're providing the shield and cover by which discrimination occurs. Conservatives love to say how they're only interpreting the law, and they can't write it. Well fine. But all that means is that the legislators who wrote the law are either malicious or incompetent. I expect every conservative who apologizes for this ruling as "what the law required" to be vociferous in demanding that the law change.
Dan Filler predicts that the 4th Circuit rehears en banc and reverses, primarily because he does not believe the two White judges who made this ruling, and the other judges on the circuit, will be able to look their two Black colleagues in the eye and say that Jordan was not just wrong, but unreasonable in thinking that his coworker's comments could have constituted a Title VII violation. I hope he's right, but I do wonder. In his "Space Traders" story, Derrick Bell has a Black character who is fiercely protective of his position of power so that, when its really necessary, he can save his people from egregious acts of racism. But when the day of reckoning comes, he finds that his position is worthless, his White colleagues simply brush him aside (all the while telling him that the event in consideration has nothing to do with race at all!). This will be an excellent opportunity to test Bell's hypothesis. As is so often with the case, I hope Bell is wrong. But I wouldn't count on it.
Further commentary: Feminist Law Profs, Belle Lettre, Workplace Prof Blog.