Discriminatory Remarks Depend Upon the Listener

Posted on March 17, 2011 by Tom Crane

 A similar question arises in all my employment cases.  In a recent case, the defense lawyer was deposing a witness who supported my client.  He asked why she thought the manager's remark was discriminatory.  Upon hearing that swine flu was predominant in the Rio Grande Valley, the manager had remarked, "Well, what do you expect from the Valley."  The witness recounted that comment as one of 3 or 4 discriminatory remarks made by the manager.  

This one may or may not show Hispanic bias.  But, the witness (Caucasian) believed it did.  The defense attorney then went down a line of questioning he would regret.  He wanted to challenge her perception.  The defense lawyer was new to South Texas.  He had moved here from a Northern state.  

Defense attorney: "Why do you think that comment refers to Hispanics?"  Witness: "Because everyone knows the Valley is mostly Hispanic."  "Are you Hispanic?"  Witness: "No, but I have several Hispanic relatives in the Valley and go there often."  Attorney: "Have you seen a census report for the Valley?"  ....  long pause.  The witness turns to face the defense lawyer squarely.  "I am from Cotulla.  I do not have to see a census report to know that Cotulla is predominantly Hispanic."  The defense lawyer then wisely dropped this line of questions. 

It is a common line of questions - the defense lawyer tries to challenge a perception of discrimination.  But, a perception, any perception belongs to the witness alone.  It is by definition subjective.  It is ultimately up to the jury to assess the validity of the subjective perception.  The jury decides the relevance of the remarks and whether one remark or all remarks display some bias.  

Some minority clients have actually backtracked or apologized for their perception.  They should not.  Minorities notice things that majority members of a group do not notice.  Body language, facial expressions are facts.  Observations are facts.  Ultimately, it is up to the jury to agree or disagree that certain body language or particular jokes amount to bias.  The beauty (and weakness) of the jury system is that the juries reflect common beliefs, good or bad. 

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Jokes About Not Eating Pork Can be Costly

Posted on June 2, 2010 by Tom Crane

Every so often someone will claim that discrimination is gone or mostly gone.  Yet, evidence of bias pops up everywhere.  In a recent trial in a patent infringement case in Marshall, Texas, a witness from Israel was testifying.  The defense lawyer was cross examining the Israeli witness.  Asking about the witness' lunch meeting at Bodacious Barbacue, the defense lawyer asked what he ate.  "I bet not pork," he offered.  Apparently, the defense lawyer thought this comment was humorous. 

The lawyer later apologized for the remark to the jury.  

The jury eventually found in favor of the plaintiff and awarded $3.7 million against Cisco Systems. But, because of the remark by the defense lawyer, the federal magistrate who heard the case offered to consider a motion for new trial.  See report.  That is, after he dismissed the jury, he told the lawyers he would was troubled by the remark, no matter how innocent the lawyers intentions may have been.  He said he would consider a motion for new trial if the plaintiff wished to file one.  The verdict was large, but the plaintiff had sought $53 million.  Commill USA v. Cisco Systems, Inc., Et Al.

Most people, lawyers especially, are on their best behavior in court.  If this is the defense lawyer's best behavior, one must wonder what he will utter in more casual settings.  As I tell my managers and employers, ethnic jokes are the path to lawsuits and trouble.   The only "safe" joke these days is a good ole fashioned Aggie joke.....

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Gross is Not Grounded in Reality

Posted on June 19, 2009 by Tom Crane

 The decision in Gross is not grounded in reality.  Gross v. FBL Financial Services does not reflect how discrimination and bias actually work.  Gross is the US Supreme Court's recent decision on age discrimination.  For various reasons, it will probably also apply to discrimination under the Americans with Disabilities Act, also.   Harold Goldner discusses its many errors in detail.  Discrimination is never simple.  It is never clear cut.  It is often a jumble of emotions wrapped around one issue, someone's minority background.

A manager can genuinely believe s/he is not biased.  Yet, that very same manager can look at someone and wonder why he is late so often, why he does not speak as well, etc.  But, the manager applies that extra scrutiny only to the minority person.  And, then when the manager fires the minority person, s/he can claim to have been motivated by job issues.  Under the Gross decision, the manager can claim s/he was motivated primarily by tardies, not by race.  The manager wins, but the victim loses.  

That is the problem with decisions like Gross.  Bias is not simple.  There will often be more than one motivating factor.  To require that a plaintiff show that "but for" the tardies, the employee would not have been fired is asking for more than reality will allow. 

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