Can a White Person sue for Discrimination after being Fired for using the N-Word? After the landmark Bostock v. Clayton County ruling, I am asking for a friend if he has an action against an employer who fired him for using the N-word on 3 occasions as well as uttering &quot;my melamine-enhanced homie over here&quot;. The employee was visibly white, and neither party disputes that black employees regularly use such language and face no disciplinary action as a result. From Bostock: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch wrote. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” It is obvious that he was fired for actions it would not have questioned (and has not) in members of a different race. Is this not exactly what Title VII forbids?
Bostock is irrelevant. Your friend can sue under Burlington v. News Corp. Burlington answered this exact question ten years ago, using exactly the same, well-established logic used in Bostock. Burlington involved a news anchor (Burlington) who was fired after using the N-word descriptively in a staff meeting. He sued under Title VII. He argued he was being discriminated against on racial grounds, since several Black employees had used the word at work without consequence. The case was tried before a jury in Federal district court. Burlington lost after the jury decided the facts did not support his claim. However, the judge made clear that the actions he alleged would violate Title VII: Historically, African Americans' use of the word has been ironic, satirical, or even affectionate. Too often, however, the word has been used by whites as a tool to belittle, oppress, or dehumanize African Americans. When viewed in its historical context, one can see how people in general, and African Americans in particular, might react differently when a white person uses the word than if an African American uses it. Nevertheless, we are unable to conclude that this is a justifiable reason for permitting the Station to draw race-based distinctions between employees. It is no answer to say that we are interpreting Title VII in accord with prevailing social norms. Title VII was enacted to counter social norms that supported widespread discrimination against African Americans. To conclude that the Station may act in accordance with the social norm that it is permissible for African Americans to use the word but not whites would require a determination that this is a &quot;good&quot; race-based social norm that justifies a departure from the text of Title VII. Neither the text of Title VII, the legislative history, nor the caselaw permits such a departure from Title VII's command that employers refrain from &quot;discriminat[ing] against any individual...because of such individual's race.&quot; Added: Why Bostock is Irrelevant for Your Friend’s Case: As you say, if we substitute the word “race” for “sex” in those sentences from Bostock, it seems obvious your friend would have a case under Title VII. This is true, but not because of Bostock. Bostock changed who could claim sex discrimination under Title VII, but nothing else. In particular, it did not change the test used to prove discrimination under Title VII. The sentences you quoted, use the well-established ”but for” test. Here's Gorsuch’s explanation of how the &quot;but for&quot; test works: In the language of law, Title VII’s “because of” test incorporates the “simple” and “traditional” standard of but-for causation. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause. The Bottom Line: Bostock is illustrative, but not dispositive, of your friend's claim.
I am not knowledgeable about UK law, but since almost everywhere in the U.S. employment is at-will by default, in all three scenarios Company B is entitled to terminate the employee very easily. The assumption that the employee was accurately found guilty of harassment elsewhere precludes more interesting analyses where matters such as defamation and public policy are involved. If the contract between the employee and Company B establishes that termination will be for good cause, the employee has only a mild chance of not being terminated for what he did in Company A. However, I say "mild chance" because in most cases Company B can reasonably argue that it seeks to protect its other employees and/or customers from the possibility that the employee's misconduct may occur in the current workplace. A very detailed analysis of the factual circumstances might be required for discerning whether Company B's decision to terminate the employee is merited. Additionally, in cases where The Employee is a publicly visible figure and a figure of authority having a management role there could be a concern that the employee's misconduct elsewhere may harm the image of Company B.
I virtually never see "without prejudice" used in anything but court documents, unless the writer does not know what he's saying. A typical example would be when a person sues someone, but brings the case in the wrong court. The judge would dismiss the case without prejudice, meaning that the plaintiff could refile somewhere else. In contrast, if the person filed in the correct court, but the judge ruled that the plaintiff had done nothing wrong, the judge would then dismiss the case with prejudice. I believe I have on some occasions seen the phrase used in legal correspondence, perhaps noting, for example, that a party was willing to settle his sexual harassment claim for X amount of money without prejudice to their claims for some unrelated issue. In either event, "without prejudice" is typically referring to the ongoing ability to litigate a claim. I'm not entirely clear on how you're envisioning it being used as e-mail boilerplate, but I can't see any reason to do so. If you did, that would not have any effect on the e-mail's admissibility. EDIT: One other note, because I hadn't looked at it before. The LinkedIn article to which you linked and the comments on it are basically nonsense. Legal advice from a graduate of the "School of Life" is about as valuable as life advice from a graduate of a school of law.
Not necessarily. It depends on the type of dismissal. The term prejudice helps better describe your question. You have described a dismissal with prejudice: the case can not be re-litigated. But it's just as likely the case could have been dismissed without prejudice. Meaning, the plaintiff could restart the case at any time. Or, alternatively, file a new case on the same facts. (You might be thinking about double jeopardy which is prohibited and applies to criminal cases involving an acquittal.) The with prejudice vs. without prejudice decision is often left to the discretion of the judge (or adjudicator) depending on the type of proceeding. And sometimes the decision is determined by procedural rule. You must read the notice or order of dismissal to determine what type of dismissal it was.
The EEOC states that national original discrimination in employment is illegal, which is supported by 28 CFR Part 44 (discriminate means &quot;the act of intentionally treating an individual differently from other individuals because of national origin or citizenship status, regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility&quot;). See also Title VII of the Civil Rights Act of 1964: It shall be an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. codified at 42 USC 2000e–2. The internet widely advises that asking such questions is illegal. The EEOC has a more nuanced view of the matter as articulated here: they say We recommend that you avoid asking applicants about personal characteristics that are protected by law, such as race, color, religion, sex, national origin or age. These types of questions may discourage some individuals from applying, may be viewed suspiciously by some applicants, and may be considered evidence of intent to discriminate by the EEOC. If you do not have this information when you decide who to hire, it may be easier for you to defend your business against a hiring discrimination complaint. Before reaching a conclusion, we should check what an employee is (42 USC § 2000e(f)), namely: an individual employed by an employer, except that the term “employee” shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States. This just tells us that in writing the law, Congress left it somewhat open what an &quot;employee&quot; is. An Amazon seller is, on the face of it, not an employee of Amazon, instead, a seller is an independent contractor. Of course that is a legal question that can't just be decided superficially, see for example California's AB5 (but even under that law, a seller is not an employee). As articulated by SSA The common law control test is the basic test, using the common law rules, for determining whether a relationship exists between the worker and the person or firm that they work for. Under the common-law test, the employer has the right to tell the employee what to do, how, when, and where to do the job If the Dept. of Labor or the IRS determine that you are (would be) an employee, then this is illegal discrimination, otherwise it is not. Since you are not paid a wage, the prospects for being deemed an employee are extremely dim. The EEOC gives this guidance on the distinction, with a very long list of examples which in general support the position that a vendor is an independent contractor and not an employee.
This depends on how far along you're waiting for court rulings to set in, and if you count laws of Congress passed under the 13th amendment's enforcement clause. There were quite a lot of things that got ruled as violations of the 13th and 14th amendments (mostly the 14th), but many were not ruled or legislated that way for decades. Some were even ruled to have an essentially opposite effect of what the current (overturning) precedents do. "Separate but equal" was challenged on 13th amendment grounds, but was upheld in Plessy v. Ferguson (1896), and wasn't overturned, on 14th amendment grounds, until 58 years later in Brown v. Board of Education (1954). Your particular situation sounds like peonage, which was outlawed by Congress in 1867 via the enforcement clause. This law specifically banned "the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise." However, peonage cases continued to make their way into the courts for more than 40 years thereafter, such as Clyatt v. United States (1905)&mdash; which ruled that peonage was involuntary servitude&mdash; and Bailey v. Alabama (1911). These cases affirmed that the 13th amendment abolished not just chattel slavery but essentially all forms of involuntary or indentured servitude (except as punishment for a crime). Though exactly what qualifies as "involuntary servitude" is still something courts decide on a case-by-case basis; the draft doesn't, nor does mandatory community service to graduate high school.
Almost certainly not. See, e.g., Lopez-Mendez v. Lexmark Intern., Inc., 680 F.Supp.2d 357, 375 (D.P.R. 2010) &quot;This incident, however, is not sufficient to constitute direct evidence of discriminatory animus...[Defendant's agent]'s anecdote could be interpreted as emphasizing the importance of a positive attitude, rather than plaintiff's interpretation that it expressed a preference for younger male employees...This benign interpretation seems more plausible...In light of these facts, there does not appear to be any evidence on the record that gives a 'high degree of assurance' that discriminatory animus was behind the decision to terminate plaintiff&quot; (emphasis added). NOTE: OP's original question was simply whether listing 'positive attitude' on a job description was illegal. OP has now changed the question to whether making employment decisions based on a depressed individual's lack of a positive attitude is illegal. Although I have great sympathy for those with mental illness and personally wish the law were different, my answer is still that this is almost certainly legal. Another example of a court finding attitude to be a legitimate reason upon which to base employment decisions is: Martin v. Allegheny Airlines, Inc., 126 F.Supp.2d 809 (M.D. Pa 2000). In this case, the court accepted as a legitimate reason for promoting one individual over another that the promoted individual &quot;demonstrated good interpersonal skills.&quot; Id. at 817. A third example is Lloyd v. Swifty Transp., Inc., 552 F.3d 594 (7th Cir. 2009). In this case, the Seventh Circuit explicitly noted that &quot;[t]he employer, not a court, determines what functions are essential, and we will not second-guess that decision.&quot; Id. at 601. It then went on to affirm dismissal of the plaintiff's ADA claim because the employer &quot;said that lead drivers must have knowledge of the mechanics of the trucks and be able to manage the other drivers on the truck through a positive attitude and ability to get along well with others. But the supervisors in charge of hiring lead drivers testified without contradiction that [the plaintiff] had a negative attitude that drew complaints from other drivers.&quot; Id. at 601-602 (emphasis added). After a relatively exhaustive search, I've found no case to counter these pretty clear statements that basing employment decisions on 'attitude' is legal. FURTHER NOTE: OP has now modified the question again to add the qualification that the lack of a positive attitude &quot;doesn't prevent the employee from doing their job.&quot; IF this were actually true, then the answer likely becomes that illegal discrimination has occurred because then the employee would be 'otherwise qualified' (a key phrase in employment law litigation). BUT, there is an inherent contradiction in premises in OP's question now because if X is a requirement of a job, and Y employee cannot do X because of Z, then Z is preventing Y employee from doing that job. In other words, if a job requires a positive attitude, then one can't do that job without a positive attitude. Ultimately, what OP's question is really trying to get at is 'what if the employer makes 'positive attitude' a job requirement, but I don't think it should be a job requirement?' Unfortunately, there's almost certainly no legal recourse for this as long as it's a legal job requirement because, to reiterate the 7th Circuit, &quot;[t]he employer, not a court, determines what functions are essential, and [a court] will not second-guess that decision.&quot; Id. at 601.
The First Amendment forbids the government from abridging your freedom of speech. There is no (federal) law against your private employer doing so. A good summary is https://www.americanbar.org/publications/insights_on_law_andsociety/15/winter-2015/chill-around-the-water-cooler.html