2011 --- the Year of the Non-minority?

Predicting what a new year will bring is a time honored tradition, but much like resolutions, most predictions rarely last longer than the first flip of the calendar. So rather than a long list, let me just start with one thing that I am guessing we might see, more cases where what might be thought to be "non-minority" employees are claiming that they have been treated differently because of their race.

One example of such a case comes from Peter Thompson's Maine Employment Lawyer's Blog, Can an employer fire a white employee for using the n-word if it lets black employees say it?. The employee in question was a news broadcaster at Fox 29 in Philadelphia before he was fired for using the n-word, while black employees were not disciplined for their use. According to Thompson's blog post,

Fox 29 argues that Mr. Burlington's comparison between his use of the n-word and black employees' use of the n-word ignores the fact that his use of the n-word offended some black employees; whereas no one took offense when the black employees used the n-word.

District Judge R. Barclay Surrick's 36 page opinion is a worthwhile read not only for the factual background, but for the complexity of the legal issues (which also includes a discussion of a cat's paw theory). Turning to the central issue he noted:

We begin by addressing an issue that does not appear to have been decided by the federal courts: can an employer be held liable under Title VII for enforcing or condoning the social norm that it is acceptable for African Americans to say “nigger” but not whites? ...

Historically, African Americans’ use of the word has been ironic, satirical, or even affectionate. Id. at 28-31. Too often, however, the word has been used by whites as a tool to belittle, oppress, or dehumanize African Americans. When viewed in its historical context, one can see how people in general, and African Americans in particular, might react differently when a white person uses the word than if an African American uses it. ...

Nevertheless, we are unable to conclude that this is a justifiable reason for permitting the Station to draw race-based distinctions between employees. It is no answer to say that we are interpreting Title VII in accord with prevailing social norms. Title VII was enacted to counter social norms that supported widespread discrimination against African Americans. See  McDonnell Douglas, 411 U.S. at 800 (stating that the purpose of Title VII was “to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens”). To conclude that the Station may act in accordance with the social norm that it is permissible for African Americans to use the word but not whites would require a determination that this is a “good” race-based social norm that justifies a departure from the text of Title VII. Neither the text of Title VII, the legislative history, nor the caselaw permits such a departure from Title VII’s command that employers refrain from “discriminat[ing] against any individual . . . because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1).

In El Paso, right before Christmas, a jury returned a verdict in a case that also seems to make the point. The Odessa American headline over an AP story told the story, Anglo worker wins discrimination suit.

The case was brought by a white benefits manager who had an altercation with his Hispanic supervisor. The company fired both.  The employee's lawyer, John Wenke, argued that:

The company feared the human-resources manager, who is Hispanic, would file a discrimination lawsuit if fired, so company officials fired both Duncan and the manager. Wenke claimed the company feared the human-resources manager, who is Hispanic, would file a discrimination lawsuit if fired, so company officials fired both Duncan and the manager.

The jury apparently agreed, returning a $5.8 million verdict.

Two cases are hardly a trend, but they are enough to get one's attention.