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PJC Brief Asks Rehearing in Employment Retaliation Case

The PJC and the Metropolitan Washington Employment Lawyers Association filed an amicus petition on May 25, 2006, requesting that that the full Fourth Circuit Court of Appeals have a new hearing to consider whether an employee was protected against retaliation for reporting racial hatred speech by another employee to his employer.
In the case of Robert L. Jordan v. Alternative Resources Corp., a black network technician at a Montgomery County International Business Machines Corp. office told his supervisors that a co-worker, while watching television coverage of the Washington-area snipers, said “they should put those black monkeys in a cage with a bunch of black apes and let the apes f*** them.” He was subsequently fired, and claims that the termination was retaliation for reporting this incident.
The trial court dismissed Mr. Jordan’s case, which was upheld by a three judge panel of the U.S. Court of Appeals for the Fourth Circuit. Judge King wrote a strongly worded dissent, arguing that in his view 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’s dissent emphasized the “severity” of the comment given that “a reference to our African-American fellow citizens as ‘monkeys’ reflects the speaker’s deep hostility towards them – on the sole basis of their color” and his finding of reasonableness was bolstered by Jordan’s allegation that co-workers advised Jordan that “they had heard [the racist co-worker] make similar offensive comments many times before.”  
In PJC’s petition for rehearing, the PJC also argued that the panel majority’s decision would place employees faced with harassing conduct in an untenable “Catch-22:” employees are required by law to report discriminatory behavior to the employer, so the employer can act to stop it.  But now, the employee may be putting their job in jeopardy if they do make the report, without protection against retaliation.
The amicus brief was written by Francis D. Murnaghan, Jr. Appellate Advocacy Fellow Roscoe Jones, Jr., with Appellate Advocacy Director Suzanne Sangree and MWELA counsel Johnathan Puth of the Washington, D.C. firm of Webster, Frederickson & Brackshaw.
An article in the National Law Journal, following, quotes Roscoe Jones.
John Nethercut
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Public Justice Center
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website  www.publicjustice.org
National Law Journal
Hostile workplace narrowed by ruling
In a first, one racial comment not enough for hostile environment.
Pamela A. MacLean/Staff reporter
June 5, 2006
In the first ruling of its kind, the 4th U.S. Circuit Court of Appeals has held that a single, racially charged workplace comment is insufficient to create a hostile work environment under federal civil rights law.
That ruling has drawn support for full court reconsideration from the Equal Employment Opportunity Commission (EEOC). "The court is imposing on laypeople the obligation to discern what a court will say is a hostile work environment," said Stephen Chertkof, attorney for the fired worker, Robert Jordan, who is black.
By a 2-1 vote, the court said that Jordan, who was fired after he reported his co-worker's racially derogatory comment, has no protection for the allegedly retaliatory firing because he could not reasonably believe that it created a hostile work environment. Jordan v. Alternative Resources Corp., No. 05-1485.
Paul Ramshaw, an EEOC attorney who filed an amicus brief, said that Jordan's complaint is one of the most common kinds of hostile environment complaints.
This ruling marks the first time a court of appeals has drawn so narrow a line for workers seeking protection from retaliation for reporting hostile comments.
Ordered to leave
Jordan, a computer network technician with Alternative Resources Corp., had worked under contract for four years at International Business Machine Corp.'s Montgomery County, Md., facility. While watching TV news reports of the capture of two suspects in the notorious Washington-area sniper case with other IBM workers in October 2002, Jordan heard a co-worker, Jay Farjah, say, "They should put those two black monkeys in a cage with a bunch of black apes and let the apes f - - them," according to the court.
Jordan reported the incident immediately, and after hearing from others that Farjah had allegedly made similar comments before, he again complained.
Within a month IBM ordered him to leave for being "disruptive."
Title VII of the Civil Rights Act of 1964 bars retaliation against workers who report workplace discrimination. Jordan sued seeking protection under the act.
Judge Paul V. Niemeyer, who was joined by Judge H. Emory Widener Jr., said that the remark was an isolated one-time response to the news report, and that Jordan was thus not entitled to protection from retaliation. The majority said that it was unwilling to "establish a rule tantamount to a statutory civility code."
A 'classic Catch-22'
In a strongly worded dissent, Judge Robert B. King said a "reasonable African-American listener" would have no trouble comprehending the impact of equating them to "black monkeys" or "apes" which he called "acutely insulting to the African-American community."
The ruling imposes a "classic Catch-22 situation," he wrote. Previous U.S. Supreme Court precedent imposes a duty on an employee to report harassing and offensive conduct in order to alert employers. Now "they may report such conduct to their employer at their peril, or they may remain quietly and work in a racially hostile and degrading work environment with no legal recourse beyond resignation," King said.
Neither IBM's attorney, William C. Sammons of Tydings & Rosenberg in Baltimore, nor the company responded to requests for comment. But in briefs, IBM said that it is "aware of no case . . . holding that a single verbal incident in the workplace, no matter how racially charged, is sufficient to create a racially hostile work environment."
Chertkof said the flip side of the Jordan case is Matvia v. Bald Head Island Mgmt. Inc., 259 F.3d 261 (4th Cir. 2001), a woman who complained too late of harassment. "The 4th Circuit says employees cross the threshold too early or too late, but never just right," complained Chertkof of Heller, Huron, Chertkof, Lerner, Simon & Salzman in Washington.
What lurks under the surface is whether there is an objectively reasonable African-American who would view the "monkey" comment differently than a white male, said Roscoe Jones Jr., attorney with Public Justice Center in Baltimore, a public interest law group.
King's dissent captured that idea, Jones said. "The objectively reasonable person is a nebulous, amorphous concept; the dissent was more specific," Jones said. "Although that's not the way this case is teed up, the court should take into account the experience of minorities."
At least one other court has addressed the issue. In 1991, the 9th Circuit changed the analysis of conduct in sexual harassment from what a reasonable person would think to what a reasonable woman would think. Ellison v. Brady, 924 F.2d 872 (1991).

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