“I see your ‘two free slurs’ rule, Fourth Circuit Court of Appeals, and I raise you one shout out to the Third Reich, alright Hoss?”
Ok, you got me.
The Fifth Circuit, which covers Louisiana, Mississippi, and Texas, didn’t actually use those words, exactly. But, what the Court did say in this opinion, was that an employee who complained to Human Resources about a Deputy Director, one who allegedly said “Heil Hitler,” could not reasonably believe that this single comment created a hostile work environment. Got that? When a manager allegedly praises the Nazis one time, that’s not against the law:
No reasonable person would believe that the single “Heil Hitler” incident is actionable under Title VII. The Supreme Court has made clear that a court determines whether a work environment is hostile by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Furthermore, isolated incidents (unless extremely serious) do not amount to actionable conduct under Title VII.
Therefore, the plaintiff, who was later reprimanded after he reported the comment — the employer claimed to have legitimate business reasons to do so — could not make out a claim for retaliation. That is, a retaliation claim requires a “protected activity.” And a protected activity requires, you guessed it, a reasonable belief that something (like a single comment) created a hostile work environment under Title VII. Apparently, that was lacking here.
Time for training.
While this case could easily involve any employer in the private or public sector, this one involves the latter.
You government employers who waste valuable taxpayer money when you read this blog, I’m sending up a major signal flare here. The EEOC and the US Department of Justice just announced that they are teaming up to crack down on state and local governments that appear to violate Title VII. So, use this news (and this post) as a wake-up call to make sure that your employees and managers are properly trained on anti-discrimination policies and procedures. Many administrative agencies can provide this training.
I also happen to know an employment lawyer *** cough *** with a blog *** fart cough *** who, without resorting to cheap laughs through inappropriate sexual harassment training videos like this (NSFW) or this (NSFW) or this (SFWish), still manages to put on a pretty entertaining “respect in the workplace” presentation too.