Stray comments made by employers can be crucial in a discrimination case.
Sometimes the comments can seem innocuous when taken out of context, but
sinister when looked at in light of all the facts. For example, a
case decided in late July found that a comment that the office "could
lighten up a bit" was evidence of race bias.
Garry Kirkland was the only African-American are operations manager for
Cablevision in his area. Before being fired, he had made multiple complaints
of discrimination to HR, particularly with regards to being singled out
from the other area operations managers. Cablevision contended that he
had been terminated because of poor performance reviews and affidavits
from three regional managers he supervised. Cablevision won the case at
the lower court level, but the 2
nd Circuit Court of Appeals overturned the lower court decision.
The appeals court pointed to several instances of evidence that could lead
a jury to find that the employer had violated Title VII. Of particular
note was testimony by Kirkland's replacement in the position. She
testified that the supervisor had explained Kirkland's termination
as resulting from his inability to discipline a subordinate. All of the
regional managers working under him were African-American, and his supervisor
told the replacement that he "ha[d] come to learn that they don't
know how to police each other." The supervisor also told her, regarding
the managers, that the regional office "could lighten up a bit."
She also testified that she believed the supervisor was "racist"
and that she had also complained to HR about him. She testified that the
HR manager told her that the supervisor was "known as the KKK without
Kirkland also swore that the supervisor singled him out for criticism,
including complaining at one time about a presentation he gave using a
colored background, telling him that there was "no room for color
in a business presentation" and that "white was better than
color." He also swore that the HR manager had falsified and back-dated
documents relating to his performance, which the court explained was "made
plausible" by the replacement's testimony that the supervisor
had asked her to drum up negative information on Kirkland after he sued.
Kirkland also testified that "[he] wouldn't be surprised"
if the supervisor had falsified the regional managers' affidavits.
As the court noted, the HR executive had written that those particular
managers were "not receptive to coaching."
The court found there was evidence that Kirkland had complained about retaliation
and race discrimination months earlier, and had repeatedly asked for a
response from HR. The court pointed to notes made by the HR associate
that could support Kirkland's testimony regarding his complaints about
being treated differently and not hearing back regarding his earlier complaint.
The takeaway: In employer discrimination cases, and especially those involving
racial discrimination, seemingly innocuous statements can be interpreted
as having racial overtones indicative of discriminatory intent. Be alert
to such comments and keep track of them if you see a pattern in your workplace.