Today, the Eighth Circuit upheld the dismissal of a racial hostile work environment claim but reversed the dismissal of a retaliation claim. Even recognizing that there are disputes over the facts, the case is a good lesson in how not to respond to a complaint about racial comments even if you believe the employee to be lying.
In July 2007, NuAir hired Lionel Pye as a temporary employee doing metal finishing work. It was entry level work. He was made a regular employee in October 2007, at which point he asked the company payroll administrator to fill out a form so he could get housing assistance from the county government. The payroll administrator was apparently rude to Pye, and uttered a racial slur in his hearing (she disputed this). Pye complained about it to the HR manager (Johnson) who met with Pye and his supervisor. What was said at the meeting was disputed. After the meeting, Johnson reported to the Vice-President (Peters) that Pye was trying to shake down the company by making an implied threat to sue. The court explained what happened next:
Johnson suggested to Peters that a lawyer be consulted to see if NuAire could fire Pye for making threats. Peters responded that he did not need to consult a lawyer, and directed McKnight [the supervisor] to fire Pye when Pye next returned to work on Monday, November 19, 2007. The only information Peters had at the time he made the decision to terminate Pye pertained to Pye’s allegations of discrimination, and to the investigation; he had no information regarding Pye’s performance on the job.
The court's decision shows the employer made a critical error. "There is no evidence that NuAire had any concerns regarding Pye’s performance before he engaged in protected conduct. Indeed, Peters acknowledged that he had no information regarding Pye’s work performance when he made the decision to terminate him." This led the court to hold that, if Pye's version was true, a jury could "believe that NuAire’s assertions of intimidation, coercion, and threatening behavior were pretext for -- if not further evidence of -- NuAire’s true prohibited reason for Pye’s termination."
Making false accusation of racial misconduct is not protected any more than are using those false accusations in an attempt to shake down an employer. Even so, the standard, as I said in a prior post about a decision from this same court, is very high. Most of the time, the employer's decision will have to be defended to a jury. The employer could hopefully have saved itself some grief and expense by consulting with an attorney before firing Pye.
Given this post's title, I suppose I should say what I would have recommended had I been called after the meeting. In a situation like this, I would have recommended the employer document the statements made at the meeting in a memo to the employee. I would ask the employee to confirm that the memo is accurate or get the employee's version of events (in writing, if possible). Only then would I make a decision about whether to fire or otherwise discipline the employee for making threats. A little patience goes a long way. (And yes, I realize the title is self-serving and hope it is taken with the humor in which it is intended.)
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