Donald Sterling, Racism & Federal Courts

The life-time suspension from the National Basketball League of  Los Angeles Clippers owner Donald Sterling for making racist comments to his girlfriend raises questions about how such conduct is treated in the workplace.

Although Sterling received the equivalent of a death sentence from the NBA, it is  unlikely that a federal court would consider Sterling’s conduct to be severe enough to violate the nation’s leading civil rights law, Title VII of the Civil Rights Act of 1994.

It what may be a sad commentary about the federal courts, racist, ageist and sexist comments often are relegated to the category of ordinary workplace incivility.

The  U.S. Supreme Court has cautioned federal judges against changing  Title VII into a “civility code” for the American workplace. See Oncale v. Sundowner Offshore Services, 523 U.S. Reports 75 (1998). As a result, most federal judges require numerous instances of egregious racist or sexist conduct before they hold employers accountable.

Sterling told his girlfriend, in a telephone conversation, that he was bothered that she associated with blacks.

Racist & Sexist Comments

A federal appeals court upheld the dismissal of a Title VII lawsuit brought by  an African-American clerk for CSX Transportation Company, Inc.  who was allegedly subjected to a racially and sexually hostile work environment.  The  court ruled that “occasional offensive utterances” do not rise to the level required to create a hostile work environment.

When Stephanie Williams declined to watch the Republican National Convention on a television at the plant in 2004, she said a male supervisor  told her that  she was a Democrat “only because she was a black woman; that unmarried women cannot ‘have the love of God in their heart[s]’; and this country should “get rid of Jesse Jackson and Al Sharpton because without those two ‘monkeys’ the country would be a whole lot better.”  The following day, the supervisor allegedly told Williams that “if she returned to school, she would not have to pay for her education because she was a single black mother. He also allegedly said all blacks should go back to where they came from.

A federal judge granted a pre-trial motion to dismiss Williams’ claim that she was a victim of a sexually hostile environment on the grounds that  her supervisor’s conduct was “neither severe nor pervasive enough to constitute a sexually hostile environment.”  He rejected on technical grounds evidence that pornography was left on tables at the plant for all to see.

The judge permitted Williams to proceed to a trial on the claim that she was subjected  to a racially hostile environment but dismissed the case before it reached the jury after finding that Williams’ evidence of a racially hostile work environment was not sufficiently “severe or pervasive” as a matter of law.

Mere Offensive Utterance

In two different opinions, the  U.S. Court of Appeals for the Sixth Circuit, which covers Tennessee, Ohio, Michigan and Kentucky,  upheld the lower court’s dismissal of Williams’ claims.  See Williams v. CSX Transp. Co. Inc., 643 F.3d 502 (6th Cir. 2011) and Williams V. CSX Transp. Co., No. 12-6197 (6thCir. Sep. 19, 2013).

The appeals court agreed the supervisor’s conduct was “despicable” but said the incident was not sufficiently ‘severe’ or ‘pervasive’ standing alone. “The statements were isolated, not pervasive; all but two occurred over a two-day period,” held the court.

The court said the reference to Jackson and Sharpton and the statement that black people should go back where they came from  “are certainly insensitive, ignorant, and bigoted. But they more closely resemble a ‘mere offensive utterance’ than conduct that is ‘physically threatening or humiliating.”

NBA commissioner Adam Silver said he will try to force Sterling to sell his franchise. Sterling also was fined $2.5 million, the maximum amount allowed under the NBA constitution.  Silver has called upon the NBA’s Board of Governors to force Sterling to sell the Clippers.

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