Some comments spell nothing but trouble. That’s why you should ban them from the workplace, at least when spoken by anyone holding a supervisory role.
One of the most inflammatory statements: the all-too-common “playing the race card.”
Why? Because if an employee has complained about alleged discrimination and his supervisor accuses him of “playing the race card” before disciplining him for a mistake or rule violation, a court may see the statement as evidence the discipline was retaliation for complaining.
Recent case: Eddie Burnell, who is black, worked for Gates Rubber in the tool room. He began complaining about alleged discrimination early on, claiming that white employees got better training and that white employees had manipulated a test so Burnell would fail.
Then one day, Burnell’s supervisor told him to put away some tools by the end of the shift, but he didn’t. When confronted, Burnell told managers that his boss had said to do so only if he had enough time. The boss said Burnell lied, simply refusing to comply with an order.
Burnell was then told he had to sign a “commitment letter” accepting responsibility. He refused. Another supervisor then told him that he was the “saddest employee” he had ever seen, because Burnell had often complained about discrimination in the past. He accused Burnell of “playing the race card.”
When Gates Rubber fired Burnell, he sued, alleging race discrimination and retaliation.
He lost on the discrimination claim, but his retaliation lawsuit will go to trial. The court ruled the supervisor’s reference to past complaints and use of the “race card” phrase was indirect evidence that Burnell may have been fired for complaining about discrimination. (Burnell v. Gates Rubber, No. 10-3490, 7th Cir., 2011)
- Job description should spell out employee's exempt or hourly status
- Study spots patterns in New York discrimination litigation
- Require HR review of disciplinary records before discharge
- Pay attention to timing when asking applicants to sign arbitration agreements
- Feel free to let the punishment fit the 'crime' when disciplining for off-duty conduct