Tuesday, April 17, 2007

End of the Road

The end has come for Jordan v. Alternative Resources Corporation. I first blogged about the case here when the 4th Circuit issued its 2-1 panel ruling, and wrote again with an update when the ruling was approved by an even 5-5 vote en banc. To refresh y'all's memory, here are the facts of the case:
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.

In any event, the Supreme Court has denied cert., so that's the end of the road for Mr. Jordan. What an appalling injustice.

Incidentally, this LA Times story on the case is really bad. The case is not about whether there should be "stricter limits on racial slurs in the workplace." It is about whether employees should be protected from retaliation by their employers when they report racial slurs. Retaliation is a separate (and in many ways, more offensive) crime than the slur itself.


PG said...

If you think the LA Times is twisting the real legal issue, check out conservatives' commentary on "David's Law," a proposed enhancement of federal hate crimes law. Just Google David's Law; without fail, every single one of them confuses "hate crime" with "hate speech." They all claim that the law would turn anti-gay sermons into a federal crime. The repeated use of the word "violence" in the actual bill doesn't appear to have penetrated any of their consciousnesses.

I only hope that the decision of "David," the Texas teenager for whom Rep. Sheila Jackson-Lee named the law, to come forward with the circumstances of the crime against him, will shame some of these conservatives. He's a Mexican-American kid who got jumped by two neo-Nazis -- they tried to cut a swastika into his chest after they sexually assaulted him with a pipe, among other assaults -- and was left for dead.

Though I disagree, I see the argument of those who think hate crime laws are inappropriate because they federalize state matters unnecessarily (David's assailants both got long prison sentences from state courts), or because they change venue or punishment for criminal trials based on the defendant's attitudes toward groups (presumably the guy who raped, tortured and attempted to kill a female Columbia journalism student doesn't have a great attitude toward women, but he probably won't be charged with a hate crime if he's ever found). But people who misstate what hate crimes laws are and do appall me.

Superdestroyer said...

The LA times article stated that the individual fired as a contractor and not an IBM employee. I wonder if that affected the issue.