Author Archives: David Y. Trevor

David Y. Trevor

About David Y. Trevor

With 30 years’ experience in Dorsey’s Trial Department and Labor & Employment Group, David has worked on a wide variety of litigation, arbitration and appeals, at all levels and at all stages of the case. Whether trying a case himself, working as part of a larger team, or writing and arguing appeals, David’s two goals are (1) to make sure the client understands the risks – and potential rewards – in any given litigation; and (2) to obtain the best possible result. David also believes strongly that all clients, from the largest corporations in the world being sued for a billion dollars to a pro bono individual trying to recover a few hundred dollars, are entitled to Dorsey’s very best service.

The “N-word,” the “Black Monkey Girl,” and the “Confident, African American Male”: Workplace Language and Hostile Environment Claims

It is one of the nightmare scenarios for any HR Department or in-house employment counsel: A white employee directing crude, vicious, racially charged slurs at an African-American employee. Perhaps the most inflammatory of such racial epithets is so toxic that it is typically no longer even spelled out in judicial opinions; it is simply the “n-word.” But employees do not limit themselves to that word. A recent case involved an African American employee whose co-worker helpfully translated what Spanish-speaking co-employees had been calling her: the “black monkey girl.” On the other hand, employees sometimes complain about language that does not appear insulting at all. One recent case included the allegation that the phrase “confident, African American male” helped create a hostile environment. So, when does offensive language in the workplace create a viable hostile environment claim?

From an HR perspective, insulting epithets, particularly based on race, gender, or other protected classes, are hurtful, damaging to employee morale, and (hopefully) prohibited by company policies.

From a legal standpoint, however, the impact of such statements is more nuanced. Although it is beyond obvious that no one should ever refer to a co-worker as the “black monkey girl,” the company involved in that case prevailed (in part) in the subsequent litigation. The legal framework of “hostile atmosphere” claims requires an analysis of factors including the following:

  • What actually was said?
  • Who said it, and under what circumstances?
  • How often were offensive remarks made in the workplace?
  • How did the company respond upon learning about the problem?

If the employer can demonstrate that the language, even if offensive, was not “severe and pervasive,” and that the company responded appropriately to employee complaints, the employer has an excellent chance to prevail against claims by the employee. Three recent decisions help illustrate this legal landscape:

In Barbara v. Here North America, LLC, the plaintiff employee was subjected to a supervisor’s use of the “n-word,” in addition to “other racially-charged language,” a sign reading “Colored” being hung above the plaintiff’s work station, and an ineffective response from management. Not surprisingly, the employee successfully staved off the employer’s motion for summary, even though there were statute of limitations problems with some of the claims.

The court applied the following legal standard for a hostile environment claim: (1) unwelcome conduct or comments; (2) harassment based on race (or other protected category); and (3) the harassment was “sufficiently severe or pervasive” so as to “alter the conditions of employment and create an abusive working environment.”

The court found that the conduct described above met the severe and pervasive standard and entitled the employee to a full trial of her claims. The employee was also entitled to proceed with claims that the damaging atmosphere impacted his performance, leading to his termination, and that the termination was a form of retaliation for his complaints about the racially hostile atmosphere.

By contrast, the employer prevailed, at least in part, in Paul v. Saltzman, Tanis, Pittel, Levin & Jacobson, Inc. Paul was a certified medical assistant whose Spanish co-workers referred to her as the “black monkey girl.” The employer, upon being informed of the situation, advised Paul to simply “let it go.” When she continued to complain, she was eventually terminated, in part because of her refusal to “let it go.”

Paul sued for both hostile environment and retaliatory discharge. The court noted that the determination of whether a hostile workplace atmosphere is sufficiently severe and pervasive is not “a mathematically precise test,” and that no single factor is determinative. The court found that the “few isolated instances” of offensive behavior here did not meet the test and dismissed the hostile atmosphere claim. However, the court did allow Paul the opportunity to amend her complaint, potentially reviving the hostile atmosphere case if she was able to provide more facts showing severe and pervasive harassment.

The court also recognized that the retaliatory discharge claim was viable. Given that one reason given by the employer for the discharge was the employee’s refusal to drop a complaint of racial harassment (based on a highly offensive, racially-charged epithet), it is certainly no surprise that the retaliatory discharge claim had sufficient merit to proceed.

Finally, in Yeboah-Kankam v. Prince William County School Board, plaintiff’s claims failed, in part because plaintiff had a lengthy and well-documented record of his own inappropriate conduct, and because the hostile atmosphere claim was based, in part, on the fact that a school district representative had referred to him as a “confident, African American male.” The court pointed out that this was not even offensive language and could not support the claim.

The takeaways from these recent cases include:

  • Offensive language is not only wrong; it is potentially the basis for a valid lawsuit. It should be prohibited by company policies and certainly never used by supervisors or management;
  • Not every complaint identifies truly offensive language. It is never OK to call an employee the “n-word” or the “black monkey girl.” But common sense suggests (and at least one court confirms) that “confident” is still a compliment, not an insult;
  • If instances of offensive conduct do arise, the company must assess how bad they are, how often they occurred, and how best to correct the problem. An aggressive and effective company response is often the best defense in cases of this nature;
  • By contrast, attempts to sweep the problem under the rug only make it worse. Regardless of what a Disney movie anthem might suggest, telling a complaining employee to “let it go” is a terrible idea, and firing her for failing to drop her complaint is even worse.












Don’t Make a Habit of it, but Sometimes, Ignorance IS Bliss

As a general rule, of course, Human Resources Departments and company management want to be – and should be – well-informed about issues in the workplace, including employees unhappy enough to have raised claims of discrimination or harassment. If key people at the company are unaware of such complaints, the employer might leave itself open to charges of sloppiness, indifference, or even tolerance of harassing or discriminatory conduct. But is it ever better not to know about an employee’s complaint?

Two recent cases illustrate how ignorance can sometimes be bliss in employment litigation. When the employer is accused of retaliation, i.e., firing an employee because of his or her complaint, the employer may have a defense if the decision-maker did not know anything about the complaint, because the employer cannot retaliate based on something it does not know.

Summary judgment based on lack of knowledge

In both McKnight v. Aimbridge Employee Service Corp., Case No. 16-3776 (3rd Cir. October 26, 2017) and Esker v. City of Denton, Texas, Case No. 02-17-200003-CV (Tex. App. October 26, 2017), an employee complained of discrimination or harassment and was shortly fired thereafter. The employee then sued for both the original discrimination or harassment and retaliatory discharge, but in each case the retaliation claim was dismissed because the person making the termination decision had no knowledge of the discrimination or harassment complaint.

Jamie McKnight was an African American food service worker at a hotel managed by Aimbridge. He felt that he was denied training opportunities and a desirable transfer because of his race, so he complained to the hotel’s general manager about discrimination and also filed a charge with the EEOC. He was given a negative evaluation, put on a development plan, and eventually terminated. But the Aimbridge supervisors who took these actions against McKnight were different individuals from the general manager to whom he had complained. At summary judgment, McKnight was unable to provide any evidence that the decision makers knew about his earlier discrimination complaints. In the absence of substantial, credible evidence to prove knowledge, the court held that McKnight could not possibly prove that the reason for his termination was his discrimination complaint. Summary judgment was granted.

Wander Esker was a duty officer in the Denton, Texas police department. She complained to an HR employee that a co-worker had sent her inappropriate text messages and had tried to kiss her, but Esker refused to give details or disclose the name of the offending co-worker. The HR employee informed her that he needed more information in order to help. At about the same time, Esker’s supervisor noticed that she had apparently stolen a toy donated to the Police Department’s annual toy drive. He began monitoring her more closely and learned that she was claiming to have worked many hours when she was not at her desk. Esker claimed that the hours reporting discrepancies were an honest mistake, but the Police Department investigation concluded otherwise, and she was terminated. She claimed both sex discrimination and retaliation. Once again, the employee’s retaliation claim failed because the individuals to whom she had complained (two people in the HR department) were not the individuals who decided to terminate her. Esker was terminated by the Chief of Police. Even when she met with the Chief to discuss her termination, she did not bring up her harassment complaints in that meeting. Esker admitted in her testimony that she had no evidence that the Chief was aware of her harassment complaints. Because she was unable to provide evidence that the actual decision maker knew of her earlier complaints, and her retaliation claim was dismissed on summary judgment.

Points to remember

The cases illustrate the following key points:

  • Identify the decision maker: both employers were able to prevail because they could clearly identify which individual or individuals had made the termination decision. In any case in which there is a claim of discrimination or retaliation, the focus will be on the decision maker, and the employer must be clear as to who that person is.
  • From the employee’s perspective, follow through on complaints: Ms. Esker raised a complaint about sexual harassment, but refused to provide details or identify the individual involved. HR specifically told her that it could not do an investigation without more information, but she still declined to provide any. While it is not entirely clear from the case what would have happened had she provided more information, it is likely that a more thorough investigation into her complaint would have had a higher profile within the company, perhaps negating the defense that the Chief was unaware of it.
  • Summary judgment is time to “put up or shut up”: whatever the specific issues are on a summary judgment motion, courts expect both parties to provide actual evidence in support of their position, not mere speculation or argument. The courts in both Esker and McKnight recognized the speculative possibility that the decision maker knew of the complaint, but they based their decision on the lack of actual evidence to that effect.





























That was simply not enough.



If a Whistleblower is Just Playing the Same Old Tune, Does the Law Protect Him?

Some of the trickiest employment decisions can involve employees who have made accusatory complaints against the company they work for. Many state and federal laws protect “whistleblowers” who try to bring to light illegal behavior by their employers. But in many instances employers legitimately wonder whether the complaint was made in “good faith,” or just to stir up trouble, or even to give a soon-to-be-fired employee who was about to be fired for some other reason, an excuse to bring a lawsuit.

So, is the employee’s complaint of employer wrongdoing really whistleblowing if the company already knows about the alleged wrongdoing?  How can the employee really “blow the whistle” if someone else has blown it already?

An opinion issued by the Minnesota Supreme Court on August 9, 2017, answers this question favorably to the employee, expands the type of complaints that will be regarded as good faith whistleblowing, and may become the basis for more lawsuits by employees accusing employers of retaliating against them for reporting alleged wrongdoing.

Previously, under Minnesota’s Whistleblower Act, Minn. Stat. §§ 181.931-.935 (2016), an employee terminated for making a complaint of illegal conduct had to demonstrate that his complaint had been made in good faith, which meant not only that the employee believed in the report he was making, but also that his purpose was to “expose an illegality.” Since the you can’t “expose” something which is already known, Minnesota law did not protect employees who complained of illegal (or allegedly illegal) conduct that the employer already knew about.

But in 2013, the Minnesota Legislature amended the statute to provide a specific definition of “good faith,” which focused on the employee’s belief that his report was true, but said nothing about intending to expose an illegality. In Friedlander v. Edwards Lifesciences, LLC, et al., A16-1916 (Minn. Aug. 9, 2017) (“Friedlander”), the Minnesota Supreme Court held that the Legislature intended to get rid of the requirement of exposing an illegality, and that whistleblowing activity is protected even if it is just the same old tune that the employer had heard before.

Although the statute was amended in 2013, until Friedlander it was not clear whether the “expose an illegality” requirement remained part of the law, as that mandate did not appear in the text of the 2013 Whistleblower Act. In Friedlander, an employee sued his former employer in the federal court under the Minnesota Whistleblower Act, claiming that his superiors had been engaged in legal violations, which the employee had reported directly to the superiors prior to his termination. The employer moved to dismiss the lawsuit, arguing that because the employer reported the allegedly wrongful conduct to people who already knew about the conduct, he had not “exposed” the allegedly illegal conduct to anyone. The success of the employer’s motion therefore turned on whether the 2013 amendments eliminated the Whistleblower Act’s “expose an illegality” requirement. Because no court had yet addressed that issue, the Minnesota District Court referred the question to the Minnesota Supreme Court, which ruled unanimously in favor of the employee. In Friedlander, the Minnesota Supreme Court concluded that the 2013 amendments eliminated the “expose an illegality” requirement. Following Friedlander, a whistleblower’s report is made in “good faith” if the report is “not knowingly false or made with reckless disregard of the truth.”

Friedlander therefore simplifies what an employee has to prove in order to sue under the Whistleblower Act. It serves as a reminder to employers that firing an employee who has complained about possibly illegal activities at the company must be addressed with care. It remains perfectly legal to fire such employees for other, legitimate reasons, but not because their whistleblowing. Employers should therefore take care to ensure that any termination, demotion, pay cut, or other personnel action being considered for an employee who has reported actual or suspected illegal conduct is taken for legitimate business reasons, not because of the employee’s report.

Biometric Attendance Scanner or “Mark of the Beast”?: How an Employee’s Unusual Religious Belief Cost the Employer $600,000.

A recent case from the Fourth Circuit illustrates the risks for employers posed by the obligation to reasonably accommodate religious objections to workplace rules and practices under Title VII.  How should an employer handle accommodation requests based on religious beliefs that the employer views as misguided or even crazy?  A sincere religious belief, even if non-traditional or highly idiosyncratic, must often be reasonably accommodated by the employer, as recently demonstrated in EEOC v. Consol Energy, Inc., Case No. 16-1406, a case decided by the Fourth Circuit on June 12, 2017.

“The Mark of the Beast”

The case arose out of what defendant Consol Energy surely regarded as a non-controversial upgrade of its attendance monitoring system.  The coal mining company began using a biometric hand-scanner to record attendance, believing the system would be more reliable and accurate than an old-fashioned time clock or a requirement to report to a supervisor.

However, one of its miners, Beverly Butcher, who had worked at Consol for 37 years without incident, was a life-long evangelical Christian (and ordained minister) who believed that the biometric scanner would place the “Mark of the Beast” on his hand.  The Mark of the Beast (sometimes called the Number of the Beast) is a concept from the Book of Revelation that has been the subject of widely varying interpretations.  Mr. Butcher apparently regarded it as a brand possessed by followers of the Antichrist which allows the Antichrist to manipulate them.  He maintained that using the biometric scanning system would place the Mark of the Beast on him, even though the system leaves no actual “mark” of any kind.  He also insisted that this problem would persist even if he was allowed to use his left hand for scanning purposes (the Bible speaks of the Mark of the Beast only on the right hand).  Mr. Butcher’s beliefs were certainly idiosyncratic; his own pastor declined to fully endorse them when asked by the company.  But they were also sincere beliefs; no one questioned that Mr. Butcher actually believed that the biometric scanner would imperil his salvation.

Butcher sought permission to record his attendance in other ways.  After considerable discussion back and forth between Butcher and Consol, Consol simply insisted that he use the scanner or be subject to discipline, which would eventually include termination.  Butcher retired instead, even though he would have preferred to continue working.

Subsequently, however, Butcher learned that Consol was willing to allow two other employees to avoid using the scanner.  Two employees with hand injuries could not use the scanner, so they were allowed to enter their employee number on a key pad, an accommodation which imposed no cost or inconvenience.  Butcher complained of religious discrimination (since accommodations to the scanner were readily available for non-religious reasons).  The EEOC brought suit on his behalf, claiming failure to accommodate sincerely held religious beliefs, a violation of Title VII.

Sincere Belief and Reasonable Accommodation

Butcher prevailed at trial and was awarded $600,000 in compensatory damages and lost wages.  His claim for punitive damages was denied, however, on the grounds that Consol’s behavior was not egregious enough to warrant that relief.  The Fourth Circuit affirmed the verdict on appeal.  The court noted that the elements of a religious accommodation claim are (1) the employee holds sincere religious beliefs; (2) the employee informs the employer of the beliefs; and (3) the employer nevertheless takes adverse action against the employee based on the religious beliefs.

As the Fourth Circuit viewed the case, the central problem was that Consol simply disagreed with the substance of Butcher’s religious beliefs.  The company did not think that its scanner placed the Mark of the Beast on Butcher.  Consol relied on the fact that the hand scanner system did not make any physical mark on the employee and therefore could not actually brand him with the Mark of the Beast.  But that was not what Butcher sincerely believed.  Similarly, even though the Bible discusses the Mark of the Beast as something found on the right hand, Butcher sincerely believed that scanning his left hand would cause the same problem.  Consol believed he was wrong in his beliefs, but that is not the test.  He was sincere.

The court also noted that Consol was perfectly willing to accommodate non-religious inability to use the scanner system; the other two employees with injury issues were allowed to enter their employee numbers on a key pad; and this caused no problems and imposed no costs, as the company itself admitted.  Therefore, Butcher had a sincere religious objection, and an easy, effective accommodation was available.  The company’s refusal to extend this accommodation to the employee based on his religious objections violated Title VII.

Compensatory Damages, Lost Wages, and Punitive Damages

The case also illustrates how Title VII claims can produce substantial damage awards.  Butcher found replacement employment after some time and also began drawing his pension from Consol, since he had technically retired from the company.   Consol claimed that the pension should be an offset to his lost wage claim.  The court disagreed, finding that the pension was a “collateral” source of income and did not reduce the lost wages portion of the employee’s recovery.  Butcher also recovered $150,000 in “compensatory” damages, which are independent of the direct economic impact of the violation.

However, Consol did prevail on the question of punitive damages.  The court found that even though the company violated Title VII by failing to Butcher, it took his concerns seriously, engaging in lengthy discussions in an attempt to find a mutually acceptable accommodation.

Lessons Learned

The case illustrates the following key points:

  • The duty of religious accommodation does not depend on the employer’s opinion of the merits of the employee’s religious belief. The test is the employee’s sincerity in his or her beliefs.
  • In virtually any discrimination case, the employer’s inconsistency is likely to be fatal to its defense. Here, Consol readily accommodated employees who had non-religious issues with the scanner.  The court thus had no difficulty in concluding that the only reason for the refusal to accommodate Butcher was his religious beliefs.
  • When a requested accommodation is extremely simple and inexpensive, courts tend to have little sympathy for an employer unwilling to apply it. Here, the keypad system was already in place for the two other employees and imposed no cost or inconvenience.  There was no issue of “undue hardship.”
  • Title VII damages can be substantial and can greatly exceed the pure economic loss suffered by the employee. Butcher recovered $150,000 in “compensatory” damages and was able to recover lost wages even though he was also drawing his company pension for the same time period.