Supervisors sometimes make comments that in retrospect may have been insensitive. That doesn’t mean an employee has a “get out of jail free” card for misbehaving. You can still discipline an insubordinate employee.
Recent case: Jermaine, who is black, worked as a physical therapy aide. Of 12 other employees in the department, only two were black.
Jermaine started as a daily part-time employee. When he eventually became a regular part-time employee, he received a copy of, which included behavioral rules. For example, the employer prohibited “[d]iscourteous treatment ... of patients, visitors, students, other employees or associates, interfering with another employee’s work, insubordination, refusal of an employee to follow instructions or to perform designated work where such instructions or work normally and properly are required of an employee.”
From early on, Jermaine got into arguments with co-workers, used pet names for patients and even suggested to one patient that he might be a pimp. He was disciplined for each incident and finally terminated after blowing a last-chance agreement that specified he understood the rules and would try harder to comply.
Jermaine sued, alleging race discrimination and a hostile work environment. As proof, he claimed that his supervisor had called him “black son,” a “faggot” and a “schmoozer.”
The court said that while the supervisor comments may have been insensitive or discourteous, they were merely stray comments and not evidence of either racial discrimination or hostility. The comments didn’t negate the employer’s allegation it had legitimate reasons to discipline and terminate Jermaine based on his own rule violations. (Lee v. Winthrop University Hospital, et al., No. 13-CV-5003, ED NY, 2015)
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