This week, a divided panel of the Fourth Circuit reaffirmed its previous decision throwing out a case brought by an African American employee of IBM who was fired after complaining to his supervisors that a co-worker, in the office, had referred to African Americans as “black monkeys.” The court of appeals originally decided the case in May, then vacated its ruling and granted rehearing by the same panel in July, causing some observers (like us!) to hope that it had had a change of heart and would allow the claim to go forward. No such luck. The same majority, over the same vigorous dissent, has now reaffirmed the dismissal of the case.
Here’s what the plaintiff alleged in Jordan v. Alternative Resources Corporation. Robert Jordan, an African-American employee, was watching a news report on the office television about the capture of the two alleged Washington, DC-area snipers when a fellow employee exclaimed, “They should put those two black monkeys in a cage with a bunch of black apes and let the apes f-k them.” He also learned that the same co-worker had made similar comments to other employees on many occasions in the past. Not surprisingly, Jordan was offended and complained to his supervisors. He was then given a less desirable work shift and had his workload increased, and – less than a month later after complaining – he was fired. Jordan sued under Title VII of the Civil Rights Act, which prohibits not only race and sex discrimination in the workplace, but also retaliation by an employer for complaining of discrimination. But two of three members of the Fourth Circuit panel (Judges Neimeyer and Widener) ruled that his claim could not even go forward to a jury.
To win on a retaliation claim, a plaintiff has to show only that he or she reasonably believed that the conduct complained of violates Title VII – in this case, because there was a racially hostile environment in the workplace. The majority opined that no objectively reasonable person could have believed that a hostile work environment existed or might develop if unchecked. In contrast, dissenting Judge Robert King understood the deep bigotry the comments in question would convey to a reasonable African American listener, and concluded that it was “entirely reasonable for Jordan to believe that, in reporting the racially charged ‘black monkeys’ comment to his employers, he was opposing a racially hostile work environment.” Judge King also criticized the majority for ignoring the Supreme Court’s recent directive in Burlington Northern v. White that Title VII’s anti-retaliation provision be broadly construed.
As Judge King noted, the ramifications of the Fourth Circuit’s opinion in this case will extend far beyond Robert Jordan. This ruling means that employees (in the Fourth Circuit states) who confront harassing conduct – not only racial harassment, as in this case, but also sexual harassment or other discrimination – have to decide between reporting the offensive incidents to their supervisors and thereby risking retaliation (as Jordan did), or keeping quiet and enduring an abusive or degrading workplace. As Judge King put it, they have to choose between “their livelihoods and their dignity.” No one should have to put up with such an untenable choice. Moreover, to the extent this ruling deters employees from complaining about early signs of a hostile environment, it will make it harder for management to act quickly and prevent escalation of the problem. Too bad that even after rehearing, these basic principles were lost on the majority of this Fourth Circuit panel.
