We’ll get to why in a bit. First, I’ll provide some context.
During the plaintiffs’ employment, the defendant received complaints that they were (1) regularly engaging in sexually derogatory commentary, (2) discussing drug use, (3) speaking derogatorily about a transgender employee, and (4) sometimes speaking in a homophobic manner. So, the defendant investigated. Including the plaintiffs, the defendant interviewed 15 people, most of whom corroborated the allegations. Many of them were white.
Following the investigation, a panel of three white men recommended that the defendant terminate the plaintiffs’ employment. It did. Then, the plaintiffs sued for race discrimination.
These plaintiffs alleged that they had “direct evidence” that the defendant discriminated against them based on their race. Direct evidence “proves impermissible discriminatory bias without additional inference or presumption.” Think smoking gun.
But the plaintiffs didn’t have direct evidence. Indeed, the court noted at the outset that the “plaintiffs’ brief confusingly implies that they both did and did not present direct evidence of discrimination.” Their direct evidence of race discrimination was a supervisor telling one of them and another white employee not to do anything disrespectful during a moment of silence the defendant held on Juneteenth.
While the supervisor didn’t mention race, the plaintiffs argued the supervisor’s statement “implies that the white employees condone, or at a minimum are indifferent, toward racial violence and hate.” Since their argument “necessarily requires an inference that the comment was discriminatory, it is not, by definition, direct evidence,” the court noted. Instead, the “plaintiffs’ direct-evidence argument is self-defeating.”
The plaintiffs also pursued a disparate impact theory of discrimination. We don’t address disparate impact much here, probably because it’s occasionally alleged and rarely successful. Disparate impact is unintentional discrimination. It occurs when a facially neutral practice or policy disproportionately impacts or burdens a particular protected class more harshly than others and cannot be justified by business necessity.
So, what was the defendant’s policy or practice that disproportionately burdened the white plaintiffs? The court searched their legal brief but couldn’t find it.
“Plaintiffs do not identify any facially neutral policy whatsoever. Instead, they claim [the] defendant had racially motivated policies that favored black employees. By definition, this assertion cannot support a claim of disparate impact.”
The court added, “Plaintiffs’ argument under this issue reveals either a serious misunderstanding of the law or its purposeful misapplication.”
Ultimately, the white guys accused of accused of discrimination during their employment could not sustain their own discrimination claims against their former employer.