Employee makes outrageously bigoted comment? Treat that as an ...

Here?s a cautionary tale about tolerating a racially hostile comment, yet then agreeing that the comment was outrageous. Employers can?t have it both ways. Either the comment was grounds for discharge or it wasn?t really that severe.

Recent case: Nadiya, who is black, works as a prosecutor for Denton County. A white fellow prosecutor was assigned to prosecute a black defendant for driving while intoxicated through a black cemetery, damaging a number of grave markers.

A police officer had filmed the arrest, and the prosecutor played the video in his office. It showed the black suspect making a number of racially insulting remarks to the white officer. Apparently deeply offended after watching the video, the prosecutor sought out Nadiya, with whom he had never worked on a case, and regaled her with the tape?s details. Then he added that the tape made him want ?to go home and put on [my] white pointy hat.? He said he now understood ?why people hung people from trees.?

This, in turn, deeply offended Nadiya, who complained to her supervisor. The next day, the district attorney and his deputy spoke with Nadiya and asked her what she wanted them to do about the incident. She sought and received an apology, but then didn?t believe it was sincere. She wanted more to happen.

The DA then ordered the white prosecutor to attend a two-hour diversity training class. Later, he was heard to say that he had to be careful of what he said around the office for fear he?d have to take ?another one of those classes.?

Nadiya sued for a hostile work environment.

When the case went to court, the DA and other managers took the stand and admitted to the jury that the statements Nadiya had endured were ?sickening,? ?offensive,? ?unbelievable? and ?totally inappropriate.? One manager even cried on the stand, illustrating how upsetting the incident must have been. Still, the county asked the jury to find that the remedy?mandatory diversity training?was sufficient.

The jury disagreed and instead zapped the county with almost $300,000 in damages for pain and suffering. The county appealed, now arguing that Nadiya hadn?t really endured a racially hostile environment based on just the two comments.

The court said the county couldn?t have it both ways: It couldn?t say the comments were outrageous but not racially hostile. (Williams-Boldware v. Denton County, No. 4:09-CV-591, ED TX, 2012)

Final note: For black Americans, the noose and hanging from a tree are very powerful images, as is any reference to the Ku Klux Klan. The white prosecutor in this case managed to evoke both images in the same offensive comment.

This is no laughing matter. Between 1882 and 1968, more than 3,400 black Americans died at the hands of lynch mobs. Chances are that many black employees with roots in the South had a family member affected by lynching at some point in the past. A reminder is visceral for such workers.

You must include a warning against evoking these images in your harassment and discrimination training. Then adopt a zero-tolerance policy toward their use in the workplace. The prosecutor should have been fired.

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