An interesting racial discrimination suit

[Grotonian]

@Miller

You know, it’s a lot easier, and less personally embarrassing, just to say, “Hey, I was wrong about that!”

But some people prefer digging holes, apparently.

I accept your concession.

[Miller]

Oh, that’s just too sad to make fun of.

[Ibn_Warraq]

@Grotonian

No, it doesn’t, it means “widespread”. If it meant, literally, “present everywhere,” then neither cars, nor telephones, nor English would be ubiquitous in the US. Is that what you think the word means?

Merriam-Webster: America's Most Trusted Dictionary

Dictionaries don’t actually define words, contrary to popular belief.

They just give common, though not necessarily universal or even sole, understandings.

[Really_Not_All_That_Bright]

@Left_Hand_of_Dorkness

Even here I’m pretty sure you’re wrong. The text of the law prohibits pay discrimination:

What does “even here” mean in this context? You are correct, incidentally. I was thinking of the Americans with Disabilities Act (which protects the disabled but not the, um… abled.)

[Left_Hand_of_Dorkness]

@Really_Not_All_That_Bright

What does “even here” mean in this context? You are correct, incidentally. I was thinking of the Americans with Disabilities Act (which protects the disabled but not the, um… abled.)

“even here” isn’t too important. Folks said that protected classes only protected minorities (more or less); I disagreed. You seemed to say that there were exceptions such as EPA; I was saying that even in the case of the equal pay act the protection extended to men as well as women. Not trying to be snarky, not with you at least :).

[Really_Not_All_That_Bright]

Ah. Carry on, then. It is certainly true that the vast majority of federal and state civil rights legislation creates “protected classifications” rather than “protected classes”.

[Procrustus]

@Miller

Again, this is wrong. The class being referred to in the phrase “protected class” is not “black,” or “female,” or “Muslim.” It means “race” or “gender” or “religion.” Every person in the US is part of a protected class, because every person in America has a race, or a gender, or some form of religious views (even if those views are, “religion is a bunch of hooey.”)

If that were true, the first element of a Title VII suit wouldn’t be to establish the plaintiff was a member of a protected class.

[Acsenray]

@Procrustus

If that were true, the first element of a Title VII suit wouldn’t be to establish the plaintiff was a member of a protected class.

It’s whether the class being asserted is a protected class, not whether the plaintiff is a member of any protected class at all.

[Left_Hand_of_Dorkness]

@Really_Not_All_That_Bright

Ah. Carry on, then.

Wait, I just realized that you thought I was saying, “You’re always wrong, even here,” right? No–I was saying, “Even in this case, I think the idea that minorities are only the protected ones is wrong.” SOrry!

[tomndebb]

ENOUGH!

The “discussion” regarding the word ubiquitous has now ended in this thread.

Any further hijacks based on that word or the purpose or use of ditionaries will receive a Warning.

[ /Moderating ]

[camille]

@Left_Hand_of_Dorkness

Several people–including camille and grumman–have described it as a legitimate request for clarification. I think that’s absurd.

My description is based on reading the opinion notes issued by the judge who denied summary judgement for the defendants. I think it’s absurd to form an opinion without reading about the specifics of the case. Have you read it?

Burlington v. News Corporation, ET AL

(Pl.'s Resp. Mot. Summ. J. Ex. O at 7-8.) During the June 23rd meeting, the group discussed a story about the Philadelphia Youth Council of the NAACP holding a symbolic burial for the word “nigger.” (Pl.‘s Dep. 161:13-19.) Robin Taylor was assigned to the story. (Taylor Dep. 63:4-8, Pl.‘s Resp. Mot. Summ. J. Ex. N.) Taylor had attended the symbolic burial and testified that the participants at the burial used the word “at least a hundred times or more” during the course of the proceedings. (Id. at 65:9-13.) Taylor discussed the story with her colleagues at the editorial meeting and consistently referred to the racial slur as “the n-word” instead of using the full word. (Taylor Dep. 80:21-81:4.) During the meeting, Plaintiff asked, "Does this mean we can finally say the word nigger?'" (Pl.'s Dep. 162:3-4.) Taylor said that she would not say the word in her story. (Id. at 163:16-22.) Plaintiff told Taylor that although he did not necessarily expect her to use the word in her story, he thought that doing so gave the story more credence. (Taylor Dep. 82:20-83:10.) At his deposition, Plaintiff testified that he "wanted to make the point that I felt if we're going to refer to the word nigger,’ we should either say the word nigger' or refer to it as a racial epithet or a slur instead of using the phrase the N’ word." (Pl.'s Dep. 161:20-24.) Plaintiff used the word once during the newsroom meeting. (Id. at 165:17-21; Taylor Dep. 87:12-14.) Nicole Wolfe exclaimed in response to Plaintiff’s use of the word, “I can’t believe you just said that!” (Pl.'s Dep. 182:15-18; Tyler Dep. 16:14-18, Pl.'s Resp. Mot. Summ. J. Ex. K.) Neither Plaintiff nor Taylor recalls anyone else saying anything on this subject during the meeting. (Pl.'s Dep. 163:23-24; Taylor Dep. 85:6-10.)

After the discussion about whether to use the word, the meeting proceeded as normal, though Plaintiff noticed that his comments had elicited a negative reaction from Nicole Wolfe. (Pl.'s Dep. 163:2-164:10.) Wolfe later told Taylor that she was offended by Plaintiff’s use of the racial slur during the meeting. (Taylor Dep. 88:8-18.) Nobody at the meeting believed that Plaintiff used the word in its pejorative sense as a racial slur. (See, e.g., Ali Dep. 104:20-105:1, Pl.'s Resp. Mot. Summ. J. Ex. I.) Taylor later told the head of human resources, Ameena Ali, that she thought more was being made of the situation than should be, and that Plaintiff had not acted maliciously in making his statements during the meeting. (Id. at 210:23-211:5.)

Keep in mind, I am not offering an opinion on whether or not this guy is an asshole (I said I have no idea), and I do not disagree with your opinion about using the word in most social settings. This is not what the OP is asking. The question is: Does he have a case? Based on my reading of the entire opinion, I believe he does.

Regarding the word “finally” in his question: There is no description of what directly preceded his query, so there is no way to determine the precise context. I would like to know more about that myself, but from what is available, I am assuming he was referring to “finally” using it when discussing a relevant story on air, rather than the phrase “the n word”.

[Left_Hand_of_Dorkness]

@camille

My description is based on reading the opinion notes issued by the judge who denied summary judgement for the defendants. I think it’s absurd to form an opinion without reading about the specifics of the case. Have you read it?

I read the OP’s link, and I think it’s absurd to chastize people for not digging up exactly the same cites you dug up, especially when they don’t change the particulars.

Regarding the word “finally” in his question: There is no description of what directly preceded his query, so there is no way to determine the precise context. I would like to know more about that myself, but from what is available, I am assuming he was referring to “finally” using it when discussing a relevant story on air, rather than the phrase “the n word”.

I don’t see how the cite supports that. “We can finally” suggests that this is something he’s been wanting to do for awhile, and it’s highly unlikely that he’s unaware of exactly how much shit a news station would catch for a white news anchor using that word on air. If he’s genuinely unaware of that, then see above re: protected status of stupid people.

Again, if he were asking the question in a legitimate way, that’s about the last way it’d get phrased.

[camille]

@Left_Hand_of_Dorkness

I read the OP’s link, and I think it’s absurd to chastize people for not digging up exactly the same cites you dug up, especially when they don’t change the particulars.

I don’t see how the cite supports that. “We can finally” suggests that this is something he’s been wanting to do for awhile, and it’s highly unlikely that he’s unaware of exactly how much shit a news station would catch for a white news anchor using that word on air. If he’s genuinely unaware of that, then see above re: protected status of stupid people.

Again, if he were asking the question in a legitimate way, that’s about the last way it’d get phrased.

Well, I’ll agree to disagree, because you are arguing points that aren’t salient to the case or the OP question. There is no indication that anyone directly involved in the case read his question the way you’re reading it (even the co-anchor who lobbied to get him terminated). Again, it’s not about whether or not the guy is an asshole, or if he had a nefarious motive for asking about usage.

Do have an opinion about the actual case? That is my interest here.

…Plaintiff has established a genuine issue of material fact on his wrongful-termination claim. The evidence shows that Joyce Evans[8] acted with discriminatory animus in the wake of the editorial meeting at which Plaintiff used the word. Her actions were based on her belief that there are certain words that African Americans can use in the workplace, but not whites—a belief that appears to have been shared by Plaintiff’s coworkers, and even management. (See Pl.‘s Dep. 188:18-23 ("Joyce said, **ecause you’re white you can never understand what it’s like to be called a nigger and that you cannot use the word nigger.'"); Metlin Dep. 155:7-20 (explaining that because Plaintiff was not Jewish, he could not use the word "kike").) In our summary-judgment opinion, we rejected the idea that because modern social norms permit African Americans to use the word but not whites, an adverse employment action that is grounded in this belief is not actionable under Title VII. See Burlington, 759 F. Supp. 2d at 597 ("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.'" (citations omitted)).

Keep in mind, the second point in the case is whether or not other employees (principally Joyce Evans, his co-anchor) acted with “discriminatory animus”, and there is ample evidence of this. Someone who worked there “leaked” the story about the meeting to the news, which is primarily what blew the incident out of proportion, and most probably the reason why he was unable to get another position in the industry. Again, he may or may not be an asshole, but that has no bearing on whether or not he has a case.

[Left_Hand_of_Dorkness]

@camille

Again, it’s not about whether or not the guy is an asshole, or if he had a nefarious motive for asking about usage.

Actually, it is. Was he fired because he was an asshole, or was he fired because he was discriminated against? Not only is this the central question, but it’s what I’ve responded to repeatedly. I’m not sure why you’re asking me whether I have an opinion about the case, given my repeated expressions of opinions about the case, including opinions expressing ambivalence about the question of discrimination and admission that I don’t have a handle on the legal issues surrounding that part of the case.

But, again, I think there’s at least some evidence he was an asshole, and people responded to that, and that he was fired for that.

[camille]

@Left_Hand_of_Dorkness

Actually, it is. Was he fired because he was an asshole, or was he fired because he was discriminated against? Not only is this the central question, but it’s what I’ve responded to repeatedly. I’m not sure why you’re asking me whether I have an opinion about the case, given my repeated expressions of opinions about the case, including opinions expressing ambivalence about the question of discrimination and admission that I don’t have a handle on the legal issues surrounding that part of the case.

But, again, I think there’s at least some evidence he was an asshole, and people responded to that, and that he was fired for that.

Could you point out that evidence?

After the discussion about whether to use the word, the meeting proceeded as normal, though Plaintiff noticed that his comments had elicited a negative reaction from Nicole Wolfe. (Pl.'s Dep. 163:2-164:10.) Wolfe later told Taylor that she was offended by Plaintiff’s use of the racial slur during the meeting. (Taylor Dep. 88:8-18.) Nobody at the meeting believed that Plaintiff used the word in its pejorative sense as a racial slur. (See, e.g., Ali Dep. 104:20-105:1, Pl.'s Resp. Mot. Summ. J. Ex. I.) Taylor later told the head of human resources, Ameena Ali, that she thought more was being made of the situation than should be, and that Plaintiff had not acted maliciously in making his statements during the meeting. (Id. at 210:23-211:5.)

There is only note of being offended by the use of the word itself, not the question. And no one believed he was using it as a slur, or questioned his motives. The employer never mentions it as cause, either.

Perhaps more information will come out in the trial, but right now I don’t see the defense claiming that at all.

[Left_Hand_of_Dorkness]

Can I point out evidence that he was being an asshole? Of course. THat people responded to it? Of course. That he was fired for it? Not necessarily–where’s the defense’s statement in all of this?

[Left_Hand_of_Dorkness]

Oh, wait–from your cite:

The investigation concluded on July 3, 2007. (Pl.'s Resp. Mot. Summ. J. Ex. JJ.) Plaintiff was issued a memorandum entitled “Final Warning and Employee Assistance Program Referral.” (See id.) The memorandum briefly described the events that had led to Plaintiff’s suspension and informed Plaintiff that “[y]our behavior was unacceptable and will not be tolerated. You will not be warned again. Further failure to meet the job performance standards of your position will result in the immediate termination of your employment.”
…
Evans also told Ali that she was concerned about her on-air chemistry with Plaintiff in light of Plaintiff’s actions.
…
On July 12, 2007, Mike Renda, Ameena Ali, and Phil Metlin met with Plaintiff and informed him that he would not be put back on the air, and that his contract would not be renewed when it expired. (Pl.'s Dep. 244:23-245:6.) Renda testified that the Station could have fired Plaintiff for cause, stating that the adverse publicity resulting from Plaintiff’s behavior violated the clause in Plaintiff’s contract that prevented him from engaging in “any activity that may result in adverse publicity or notoriety for performer or company.”

So, yes:

1. He was an asshole.
2. Others responded to his assholery.
3. “The adverse publicity resulting from plaintiff’s [assholic] behavior . . . result[ed] in adverse publicity or notoriety for [the] company.”

[camille]

The adverse publicity was the result of another employee “leaking” information about a private company meeting to the news. This itself is a violation that would result in termination, and is submitted as evidence of discriminatory animus on the part of his co-workers. The company never investigated that leak. How does that make him the asshole?

[camille]

Plus, subsequent to receiving the warning, he was deemed “in compliance” and the employer indicated the desire that he return to work:

In the meantime, Plaintiff complied with the EAP’s requirements. (Ali Dep. 249:6-20.) On July 6, 2007, the EAP informed Ali that Plaintiff was fit to return to work. (See Pl.'s Resp. Mot. Summ. J. Ex. MM (stating that Plaintiff was “in compliance” and was fit to return to work, and that “[h]e feels very badly and is remorseful about what happened”).) Ali forwarded the email to Mike Renda. (See id.) On July 9th, Renda replied to Ali’s email, stating, “[w]e need to talk about return scenario—news would like him to return Wed.” (Pl.'s Resp. Mot. Summ. J. Ex. NN.)

[Left_Hand_of_Dorkness]

@camille

The adverse publicity was the result of another employee “leaking” information about a private company meeting to the news. This itself is a violation that would result in termination, and is submitted as evidence of discriminatory animus on the part of his co-workers. The company never investigated that leak. How does that make him the asshole?

Seriously? The leak was about him being an asshole. The adverse publicity was the result of a leak ABOUT HIM BEING AN ASSHOLE. It could not have happened if he hadn’t been an asshole.

You asked for evidence of my claims. I provided it, and you’re disputing it–but I cannot figure out how, or why. In order for me to be incorrect, the employer’s thought processes on firing him had to be something like this:

-We’re firing you for violating your contract.
-The contract violation is that you brought adverse publicity on us.
-You had nothing to do with that violation–it was the leaker, not you, responsible for that adverse publicity.
-Your assholish behavior, which we previously told you was unacceptable, and which was the subject of the leak, had nothing to do with that adverse publicity.
-Bye bye!

That’s crazypants. EVEN IF they thought the leak was actionable–which is entirely their decision whether they want to investigate it–it’s their decision whether his part in the whole brouhaha was something worth firing him over.

Now, AGAIN: the issue of discrimination is one that I feel conflicted about. But that’s not the piece I’m talking about. The piece I’m talking about is the question that’s going to trial: was he fired because of discrimination (what you seem to think is perfectly clear), or was he fired because his employer thought his asshole behavior was worth firing him over?

Plus, subsequent to receiving the warning, he was deemed “in compliance” and the employer indicated the desire that he return to work:

Yes, I read that. That was prior to the adverse publicity. They’re not required to keep the jerk on-board if he’s going to be a liability to their brand. They didn’t pinky-swear they’d renew his contract. Once he became a liability, they dropped him.