There exists only one workplace environment in which a white employee can keep his job after yelling the following at a group of African-American employees.
- “Hey, did you bring enough KFC for everyone?”
- “Go back to Africa, you bunch of f***ing losers.”
- “Hey anybody smell that? I smell fried chicken and watermelon.”
A gold star for you if you answered a picket line, when the comments are made by striking workers and are directed at a group of replacements crossing said picket line. Or at least this is the majority finding of the 8th Circuit Court of Appeals in Cooper Tire & Rubber Co. v. NLRB [pdf].
- Courts show deference to decisions of administrative agencies, and the NLRB found that Cooper Tire unlawfully terminated the picketer.
- The picketer’s comments, while racist and offensive, were not accompanied by threats or violence.
- The offensive words were “part of a package of verbal barbs thrown out during a picket line exchange” or were of a “message dealing with the morals and character of crossovers generally,” and did not target a specific replacement worker.
The better argument? Look no further than the dissenting opinion of Judge C. Arlen Bean:
No employer in America is or can be required to employ a racial bigot. Indeed … the court’s requiring of the petitioner to do so here, is tantamount to requiring that Cooper Tire violate federal anti-discrimination and harassment laws … . Engaging in union organizing or efforts to vindicate protected labor activity does not insulate the volatility and heinous nature of racist, or sexist, remarks. … Discriminatory and degrading stereotypes are not legitimate weapons in economic disputes carried out on the picket line.
Amen.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com.
“Amen” is right. The appeals court decision, while certainly not as far out there as Dred Scott or Plessy v. Ferguson, is simply not worthy of respect from the legal community in this day and age. Sooner or later, people with the ability to effect change will have to say “enough is enough, already.” It is hard enough for people of good faith to move past the divisiveness plaguing our society without a panel of judges who seem still ready to accept such blatant racism in a workplace environment. It is not that difficult to discern a reasonable bottom limit in the NLRA to the amount of degradation and harassment that can be accommodated in the interest of collective bargaining rights. The dissenting judge expressed things very well, and that opinion may yet carry the day upon further appeal. At least, one can hope!
Bless you. When I saw that I had a comment on this post I feared the worst. In this day and age, you never know what troll is going to crawl out of what hole.