One of the more difficult problems for employers is harassment by unknown co-workers. The law was designed for harassment by supervisors. It functions not so well when the harassment is caused by co-workers. In Tolliver v. YRC, Inc., No. 17-10294, 2018 US LEXIS 17806 (5th Cir. 6/28/2018), African-American workers were harassed in various ways for over 15 years. The black workers encountered racist graffiti, nooses, and other incidents. The district court refused to allow evidence of incidents which occurred beyond the 300 day limitations period. So, the court only addressed two incidents, a noose left in YRC facilities and racist graffiti left on a YRC truck. It was not known who committed these acts.

The court found these two incidents were not sufficiently pervasive or severe to amount to a hostile work environment. The court noted that the plaintiffs did not contend that the two incidents were directed toward them. And, said the court, “for the most part,” the plaintiffs learned of the two incidents second-hand.

But, even if the two incidents were sufficiently severe or pervasive, management took prompt and remedial action. The company posted a $25,000 reward for information about the incidents. It interviewed hundreds of employees. It hired security guards, and it contacted law enforcement. The employer also provided weekly reminders about its non-discrimination policies. The employer did not discipline anyone, because the perpetrators were not found.

As the court added, Title VII is not a behavior code. It prohibits discrimination. Essentially the court is saying Title VII does not require the employer to deeply investigate acts of apparent racism. Most courts require reasonably swift action, and not much more than asking employees if they know who committed the acts. This decision is in line with those prior authorities. The Fifth Circuit affirmed the grant of summary judgment. See the decision here.

In another case about immigrants, Pres. Trump’s racist remarks about immigrants were used as evidence against him. This judge, Edward Chen in San Fransisco, ruled in favor of the immigrants partly based on the President’s comments about Mexican immigrants, about Muslims and about immigrants from some African countries. Judge Chen ruled that to the extent the President had influence on the head of Homeland Security Department may have implemented certain restrictions due to the President’s wishes.

The lawsuit seeks to stop Homeland Security from ending provisions allowing immigrations from from El Salvador, Sudan, Nicaragua, and Haiti. Judge Chen found there was evidence that Pres. Trump harbors animus against non-white, non-European immigrants.  See CBS news report here.

I previously wrote about Pres. Trump’s racist comments here. It is exceedingly unwise to make comments like that. Some court decisions have chosen to overlook his comments, finding most of them were made during the campaign. But, in every lawsuit about immigration, those comments become key issues.

Those racist comments may help his election chances, but they undermine his immigration policies. But, I suppose he knows all this and has chosen to emphasize election viability.

 

According to Donald Trump, many Mexican immigrants are rapists. He defended his comments later. See Business insider report. They also bring drugs and crime. But, some, he says, are good people. All I can say his experience with Mexican immigrants is far different than mine.

Surprisingly, Sen. Ted Cruz supported Mr. Trump in making his comments. Sen. Cruz focused on the need to tighten the nation’s borders. But, other candidates, including Rick Perry and Jeb Bush have criticized Mr. Trump for the evident racism of his comments.

Racism comes in degrees. A wise man once said we are all racist to some degree. Well, one truck driver in East Texas is way off to one degree. On the back of his pick-up truck, he has professionally painted a picture of a a banana and Pres. Obama wearing Somali garb. The tailgate asks if this socialist "a**_ makes his truck look too big. Is the word ass or ape? We do not know. But, yes, this tailgate qualifies as a racist caricature. See San Antonio Express News report

Sebastien De La Cruz sang at the NBA Finals in San Antonio, just as he did a year ago. The little boy who wears a charro outfit while singing. Charros are Mexican cowboys. Sebastien is a Mexican-American. He is as American as you and I. Yet, when he sings the national anthem at the NBA Final games, folks from around the country tweeted that he was an "illegal" and asked why a Mexican was singing the national anthem. No, he is no more a Mexican than I am Irish, German or French. See San Antonio Express News report (account required).

"San Antonio’s Little Mariachi," as he is sometimes called, was a semifinalist on America’s Got Talent in 2012. He was a last-minute replacement at last year’s NBA Finals. He likes to wear the charro outfit. Why not? He was subjected to racist tweets last year. After he sang last night, more racist tweets followed. Now more experienced, Sebastien sighs, and suggests people stop being childish. The 12 year old responds, "I am who I am, and nobody can tell me different." That is wise advice for anyone subjected to racism. 

Donald Sterling responded to the NBA’s attempt to force him to sell his team. Mr. Sterling insists the "illegal" recording made during a "lover’ quarrel" should not be used to oust him as owner. Mr. Sterling did not intend the recording to ever see the "light of day," said his lawyers. The lawyers’ statement, instead, attacked the NBA’s charge for lacking the "courage" to acknowledge the circumstances of Mr. Sterling’s "jealous rant." See CBS news report

Mr. Sterling’s lawyers miss the point. Mr. Sterling clearly holds racist views. It does not matter how those views were revealed. An employer of so many black athletes cannot be expected to act without some degree of racism. Three civil rights lawsuits against the owner confirm that simple reality.  

But, heck, no one expected the famously litigious Mr. Sterling to go quietly into the night. 

Donald Sterling has apologized for making racist remarks. I previously wrote about his racist remarks here. He says his comments were "terrible" things to say. But, he adds in the CNN interview, he was "baited" into making them. He suggests he should be entitled to one mistake in his 35 years as owner. He said he did not know why "the girl had me say those things." See CBS news report

Ok, he did not actually say those things, after all. His half-Hispanc, half-black girlfriend "made" him say those things. . . .  This is a story with a lot of twists and turns. His girlfriend, V. Stiviano, is a minority herself. She grew up in San Antonio, Texas. Would a white man who dates a minority hold racist views? Well, the statements about avoiding blacks speak for themselves. Racism is rarely neat and tidy. Racism is rarely as clear and apparent as white hooded robes. 

I am glad Mr. Sterling apologized. But, he does not sound ready to accept full responsibility for his statements. And, this is not his first "mistake." He has been sued in two major lawsuits for housing discrimination. Housing discrimination lawsuits are quite rare. I am sure those two lawsuits were only filed because the evidence was overwhelming. His former coach, Elgin Baylor, sued him for discrimination. Mr. Sterling’s statements are simply his latest "mistake." 

One of the wonderful things about employment law is that employers have several ways to avoid liability for "stupid" things management might do. One big tool in the employer’s arsenal is the prompt remedial action. If an employee complains about harassment, the employer can investigate and then take "prompt remedial" action. If the employer does so, then it will avoid liability entirely. In Williams-Boldware v. Denton County, 741 F.3d 635 (5th Cir. 2014), that is what the employer did. Denton County took prompt action. The employee might have preferred other steps, but the employer did take some action right after the plaintiff complained. 

The plaintiff, an African-American female, was subjected to racist comments by a co-worker. A accused felon had made several racist statements toward the white policemen who arrested her. The incident made a male Assistant District Attorney understand why "people hung people from trees" and made him want to go home and put on his "white pointy hat." Ms. Williams-Boldware, also an Assistant District Attorney, complained to County officials. Within 24 hours of her complaint, the higher officials met with the plaintiff and the offending employee. The offending attorney was made to apologize to the African-American attorney. They also required the offending attorney to take diversity training. The offending attorney received a verbal reprimand.

The plaintiff did not experience any additional harassment. The male attorney did make one joke later about the training he was forced to take.

Even so, the jury found in favor of the plaintiff. The jury awarded Ms. Williams-Boldware $170,000 for past emotional suffering, another $170,000 for physical pain and suffering, and $170,000 for future emotional suffering. 

The Fifth Circuit overturned the jury decision. It found that the County’s response to her complaint could not have been more prompt. The County allowed Ms. Willimas-Boldware to fully explain what she experienced. It consulted with her regarding what should be done. The County took the plaintiff’s concerns seriously and its remedial efforts did effectively end the harassment. 

See decision here. www.ca5.uscourts.gov/opinions/pub/13/13-40044-CV0.pdf  

So, now the NBA Commissioner, Adam Silver, has announced that Don Sterling will be forced to sell his team, the San Diego Clippers. The NBA relies on entertainment dollars. It cannot afford a team with such a despised owner. But, can the NBA force him to sell his team? What happened to free enterprise?

The NBA’s constitution provides that by a vote of three-fourths of the owners, the organization can indeed terminate an owner’s interest. But, the constitution is also very specific about what transgressions can trigger that provision. And, Mr. Sterling’s racist comments do not fit that provision. See ABA Bar Journal report. Mr. Silver indicated he had the three-fourths support he needed. 

In response to such a lawsuit, the famously litigious Don Sterling could argue that the NBA has colluded against him in violation of anti-trust laws. Generally, says one expert, businesses may not cooperate to force a competitor out of business. But, the other owners could overcome that anti-trust protection if it could show that association with Mr. Stirling was causing harm to their businesses.

Gary Roberts, a well known sports attorney at Indiana University School of Law, says categorically that if Mr. Stirling challenges the ban, then he will lose. He cannot operate his business if no one plays for him. He cannot operate a bankrupt business. What Mr. Silver meant, said Mr.Roberts, is that the NBA owners will make his life so miserable and unprofitable that he will have no choice but to sell. Lawsuits may not help the litigious Don Sterling, after all. 

It is a remarkable development for Texas.  Dan Patrick, candidate for Lieutenant Governor received 41% of the vote.  He will be in a run-off with the incumbent, David Dewhurst.  Mr. Dewhurst only garnered 28% of the vote.  It is remarkable because Dan Patrick has made numerous racist statements as part of this campaign and other campaigns.  In a prior campaign, he argued that the illegal immigrants from Mexico must be stopped because they bring diseases with them.  In the current campaign, he has unabashedly insisted that the "invasion" from Mexico be stopped.  

Mr. Patrick’s rhetoric is no different from anti-immigrant rhetoric at least since the 1850’s when the Know Nothing party targeted Irish Catholics.  That he has found some political success is not germane to this blog.  But, it is ironic that what helps him win elections would also serve as useful evidence against him in a discrimination lawsuit.