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Use ‘reasonable person’ test to gauge threat of lawsuit for allegedly offensive speech

by on
in Discrimination and Harassment,Human Resources

If a reasonable person wouldn’t find mild, isolated comments out of line, an overly sensitive employee will have a hard time arguing that they were offensive enough to warrant a lawsuit.

Recent case: Marilyn Sessions, who is black, claimed that the black super­intendent of the school system where she worked, twice made statements that Sessions found racially offensive.

During the first incident, Sessions was at her desk speaking with another black teacher when the superintendent entered the room. The superintendent asked how Sessions took care of her hair.

When Sessions replied that she merely washed and dried it, the super­­intendent said, “Oh, you have that good hair.”

The second incident occurred during a meeting. The superintendent suggested that as a team-building exercise, everyone bring in a baby picture and have others try to pick out who was whom. She added that they might need to plant some fake photos since “some of us have more melanin in our skin than others.” Sessions filed a complaint.

But when Sessions was later terminated for poor performance, she filed an EEOC lawsuit, alleging retaliation. The trial court tossed out her case, and she appealed.

The 4th Circuit Court of Appeals refused to reinstate the lawsuit, reasoning that Sessions hadn’t engaged in protected activity and therefore couldn’t have been retaliated against. The court said no reasonable person would have seen the two isolated comments as racially hostile. (Sessions v. Montgomery County, No. 10-1827, 4th Cir., 2012)

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{ 1 comment… read it below or add one }

James Coakes April 23, 2012 at 5:50 am

The reality is that common sense does prevail in most situations. There’s an idea that spurious claims of racial or disability prejudice is rife and claimants run rampant over business through tribunals and that serves to increase tension in the workplace.

The reality is usually more sensible and that’s good because if managers have to walk on eggshells it won’t be good for their performance.


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