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Recently we were asked to speak on an interesting topic: “What Not to Say.”
The topic was more challenging than it might seem. We were speaking to an audience of sophisticated HR professionals and business owners. They didn’t need a lecture on avoiding sexist or racist jokes. They wanted meaningful advice based on actual court cases.
We scoured the case law for unexpected patterns and traps for the unwary. Here are three insights.
1. Beware of Good Intentions
There is an old saying about the road paved with good intentions. It can indeed lead to a bad place, at least according to the case law.
For example, one notable case involved a promotion decision. The best qualified applicant, a tenured female employee, was the mother of four children, including 6-year-old triplets. The decision-maker commented in an email: “Oh my – I did not know you had triplets. Bless you!”
After a less qualified candidate was selected, the decision-maker made an ill-fated attempt to soften the blow: “It was nothing you did or didn’t do… you just have a lot on your plate right now.”
Not surprisingly, a successful lawsuit ensued.
Similar cases involved comments like:
- “No job is worth your mental health.”
- “We figured you would not consider relocating — your husband’s job is here.”
- “Surely you don’t want to work long hours at this stage in your career.
The takeaway: Well-intentioned discrimination is still discrimination. Also, don’t make assumptions about what you think an employee might want.
2. The Customer Isn’t Always Right
Employment law jurisprudence includes many “customer preference” cases. The takeaway is simple: Federal and state antidiscrimination laws supersede customer preferences.
This simple takeaway is not always easy to implement, especially in industries laser-focused on customer satisfaction.
A recent case involved the only Black nursing assistant at a particular hospital. A patient expressed discomfort with the nursing assistant due to race, and assignments were changed as a result.
The nursing assistant sued for race discrimination based on various issues, including the reassignment incident. Supervisors testified “we make it happen for the patient” and conceded they would accommodate a patient’s request even if it was based on a staff member’s race.
The court of appeals found this to be evidence of a racially hostile environment and remanded the case for trial.
3. There Is No Friendship Exception
In the workplace, there are no BFFs (best friends forever) — there are only BFFNs (best friends for now).
Workplace alliances often shift over time, and what once was harmless banter becomes Exhibit A in a lawsuit.
One case involved eyebrow-raising comments by a supervisor, referring to a staff member with Mexican ancestry as “a Mexican terrorist in a miniskirt” and teasing her for having a “Mexican brain” when she made an error.
These seemingly inexcusable remarks sound different after learning the supervisor and staff member were close friends, even taking a weeklong vacation together with their respective spouses.
Alas, after the friendship waned and the staff member resigned, there was a race discrimination lawsuit. The court of appeals ultimately dismissed the case but noted it was “a close call.”
In conclusion, make sure your supervisors are aware of these important issues. Good intentions, customer preferences, and friendship do not offer protection. Rely instead on respect, professionalism, and vigilance.
Vianei Braun is a shareholder at Decker Jones P.C. She represents employers in a wide variety of industries and provides litigation and administrative agency defense, compliance assistance, and practical advice.
Kiala Ellingson is an associate attorney at Decker Jones P.C., where she focuses on commercial litigation and intellectual property. She has a strong background in STEM that informs her unique interdisciplinary approach to practicing law.