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Do you know that scene from Lethal Weapon 2? The one where Joe Pesci (Leo Getz) tells the representative from the South African embassy to convince his friend Danny Glover (‘Alphonse’) not to move to South Africa because he’s black.
I’ll pause for a sec while you watch it.
Now, hold that thought while I tell you about a civil action pending in a Michigan federal court where a black employee claims that his former employer discriminated against him based on his race.
On Monday, the company, through its counsel, issued this public statement confirming its plans to “file[] a motion to dismiss the case in its entirety.” That motion “will include documentary proof that neither [the plaintiff’s] race nor retaliation played any part in [the defendant’s] decision to end [his] employment.”
But you’re black!?
Why would an employer reveal its defense strategy in a public statement?
Well, here’s the thing. Earlier in the day on Monday, the Detroit Metro Times published this report, which included leaked deposition testimony from a company manager. The company manager, who worked with the plaintiff, testified that he did not know that the plaintiff was black.
This is the plaintiff.
Here is the deposition transcript. (If you’re reading this post on a mobile device, you may need to scroll down the page a bit.)
I’ve been in situations in which an employer-client was not aware of an employee’s particular protected class. For example, maybe the company did not know the employee’s religion or that s/he had a disability. So, when it decided to end the individual’s employment, that unknown protected class could not have motivated the company’s employment decision and there would be no discrimination.
And the same would be true for ‘race’ in a failure-to-hire claim where the company never saw the applicant.
But, not knowing the race of a dark-skinned black co-worker is a new one for me.
Is it a smoking gun? Or just smoke?
The Detroit Metro Times report claims that the manager’s testimony “revealed a startling and arguably ludicrous defense”; namely, that the manager denied knowing the plaintiff’s race.
I doubt that’s the company’s actual defense to these claims of race discrimination. The company admitted in court filings that the plaintiff is African American. Plus, in the company’s statement, it argues that it evaluated and decided to terminate the plaintiff based only on his job performance.
But while the company may win the legal battle, it appears to be losing a greater one in the media. This story is gaining traction nationally. WaPo, NBC News, and Newsweek, among others, have reported on the leaked deposition testimony. Never underestimate the public relations hit that claims of employment discrimination can have on your business. That is another potential cost of employment litigation.
How will this particular situation end? Like my employment law buddy, Jon Hyman, I’m grabbing my popcorn and paying close attention.
That’s assuming I have any left after I finish watching Lethal Weapon 2 again.
“Diplomatic immunity…”
(Email me and finish the line.)