A decision by a panel of the 8th Circuit Court of Appeals may mean changes are coming for employers accused of tolerating racial bias. Two of three judges on the panel concluded that an employer wasn’t liable for a series of co-worker comments that were arguably racist.

The case originated in Minnesota, and the 8th Circuit has jurisdiction over Minnesota employers.

Recent case: Shelia Smith, who is black, worked in the emergency room of Fairview Ridges Hospital. She was written up several times for poor performance. Ultimately, she quit.

Then she sued, alleging she had been disciplined in retaliation for complaining about racial hostility at work.

Smith cited incidents both overt and subtle. She said co-workers had compared her to the Buckwheat character from the 1920s and ’30s “Our Gang” films, which—while mainstream at the time—seems bigoted today. She alleged a co-worker told her to return to the “ghetto” from which she came. In another incident, a co-worker showed her a web site that featured a joke about how to stop a group of black men from raping a white woman: by tossing them a basketball.

Two of the three judges concluded that Smith had no case because the incidents were not severe enough to create a racially hostile work environment. The dissenting judge disagreed, setting up a potential appeal to the full 8th Circuit Court of Appeals and possibly the Supreme Court. (Smith v. Fairview Ridges Hospital, No. 08-1924, 8th Cir., 2010)

Final note: The dissenting judge is the same one who dissented in the sexual harassment case Smith v. HyVee, No. 09-2631, 8th Cir., 2010. While it may seem from these cases that employers don’t have anything to worry about when co-workers behave poorly, that may not prove true if these cases are appealed further.

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Shelia Smith December 29, 2011 at 2:34 am

No, if you defend yourself or stand up for your rights when complaining about harassment jokes, etc…. then only is it considered behaving poorly. When you put your head down and answer yessa master, then you are considered obedient and a good employee. While working in other areas of the hospital, other supervisors gave outstanding work performance reviews, it was apparent that some learned from diversity training while others did not. It’s been almost a year since the courts ruled against me, but I will say I don’t feel bad at all losing at the Supreme Court level, at least now they know that not all blacks and minorities are dumb runaway slaves lol.

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