Employers must make sure they hand out similar punishment for similar misconduct, regardless of the race of the employee—or any publicity that might surround the case.
Recent case: William Smith, a supervisor at a Lockheed Martin facility, is white.
Lockheed Martin has a strict zero-tolerance policy against the use of “racial slurs, ethnic jokes, sexual or lewd jokes, negative or derogatory stereotypes, names or labels that a reasonable person would find offensive.” The policy includes offensive emails sent using Lockheed Martin computers and systems, and forbids employees from forwarding offensive emails. Its policy requires everyone who receives an offensive email to immediately report it to HR.
The policy didn’t prevent race problems at Lockheed Martin. In fact, the company had recently experienced a horrific workplace shooting in which five employees died and eight were injured when a white employee opened fire. The employee was allegedly a known white supremacist.
That’s the background against which Smith’s actions would come to be judged. Smith allegedly violated the email policy when he forwarded a message he had received on his office computer titled “Top 10 Reasons Why There Are No Black NASCAR drivers.” Among the offensive reasons were “a pistol won’t stay under the front seat” and “no passenger seat for the ho.” He didn’t report the email to HR.
HR learned about the email when a black employee hired an attorney and threatened to sue. The employee had a long history of threatening and filling discrimination complaints.
Around the same time, company executives found out that a national television network was about to air an investigative report claiming that racist attitudes that led to the Lockheed Martin shootings still existed.
HR investigated the email chain and fired all supervisors—including Smith—who got it and either forwarded it or failed to report it. Before the termination, HR created a matrix that included each recipient, his or her action and the race of all involved.
Shortly afterward, a black supervisor received a video attachment in her email that described “How to Dance Like a White Guy.” The video referred to “crackers,” “honkies” and “whities.” She forwarded it, but then reported it to HR after concluding she might get in trouble. She kept her job, but white employees who forwarded the same video were terminated.
Smith sued, alleging reverse discrimination.
The 11th Circuit Court of Appeals said his case should go to trial based on evidence that could be interpreted to show that Smith was punished because of his race, while black employees retained their jobs for virtually identical conduct. It was particularly sensitive to the race designation in the firing matrix and the fact that the company might be afraid of litigation or more bad publicity if it did not fire Smith. (Smith v. Lockheed Martin, No. 09-15428, 11th Cir., 2011)
Final note: There’s no excuse for using race as the distinguishing factor when the conduct is virtually identical. While firing Smith might have been consistent with the policy, so would firing black employees who forwarded similar material.
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