A single, isolated comment—especially if the speaker isn’t a co-worker or supervisor—isn’t sufficient grounds for alleging discrimination. Complaining about it doesn’t amount to protected activity.
Recent case: Antron and John, who are black, were pipefitters working through a temp agency. After they were terminated for alleged financial reasons, they sued, claiming discrimination and retaliation for reporting discrimination.
At the core of their initial complaint was a single comment they heard from the owner of property where they were laying pipe. That owner was coincidently the safety director for the company that Antron and John had been assigned to work for. He apparently accused the two of “n****r-rigging” the fence around his property and said he’d get them fired if a cow escaped. They reported the comment to their temp agency supervisors.
The men argued that by reporting the comment, they engaged in protected activity and that they had been terminated in retaliation for doing so.
But the court rejected their reasoning. Instead, it concluded that a single offensive comment—especially when the speaker wasn’t a fellow employee—couldn’t possibly have been enough to make the men believe their employer discriminated on the basis of race. Because the men’s belief was unreasonable, they hadn’t engaged in protected activity and weren’t protected from retaliation (if that’s what their discharge was.) The case was dismissed. (Castleberry, et al., v. STI Group, et al., No. 4:15-CV-00153, MD PA, 2015)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Firing employee? Require the presence of at least 2 managers during discharge meeting
- Ensure you can justify gender pay disparities
- OK to apply different discipline standards to new employees
- Know the limits of employee free speech—no need to tolerate out-of-line protests