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11th Circuit: Discrimination Claims Against ESPN Zone Tackled

By Scott M. Wich  11/16/2007
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11/16/07 3:22 PM

11th Circuit: Discrimination Claims Against ESPN Zone Tackled

By Scott M. Wich

The 11th U.S. Circuit Court of Appeals provided a reminder to employers of the value of good employment practice documentation, dismissing race discrimination claims against ESPN Zone in light of the company’s paper trail.

The plaintiffs worked for the ESPN Zone, mainly as servers at the restaurant and entertainment center. ESPN Zone maintained several written policies, including a written anti-discrimination policy and three different employee guides concerning equal employment and harassment. The organization also used “contact sheets” which recorded employee issues such as disciplinary infractions, instances of positive performance and related information.

Asserting racial discrimination and harassment, the plaintiffs sued ESPN Zone. Specifically, they alleged that they received less desirable assignments (resulting in less tip income) and were denied promotion to high-paying trainer and bartender positions. The plaintiffs also complained that they were subject to racially charged language creating a hostile work environment, citing instances where other employees were referred to as “monkeys” or “ghetto.”

With respect to the claims of discriminatory work assignments, the 11th Circuit noted that there was a statistically significant disparity between section assignments for Caucasian and black employees. However, the court found that the plaintiffs had failed to offer sufficient evidence that the disparity in section assignments resulted in a difference in pay. Because the plaintiffs were unable to show that white servers were treated more favorably, the appeals court concluded, the claim was properly dismissed.

The court also affirmed the dismissal of the failure to promote claims. The 11th Circuit held that ESPN Zone had articulated legitimate bases for not promoting the plaintiffs, supported in large part by documentation of employee performance and discipline. In one case, a former server challenged the restaurant’s conclusion that she had “chronic attendance problems,” the basis on which the promotion was denied. The appeals court relied on the written attendance records to conclude that, in fact, the basis for the denial of her promotion could not be found pretextual.

The claims of hostile work environment were likewise dismissed. While noting that the use of racial epithets in the workplace is a severe condition, the 11th Circuit highlighted that a single or isolated utterance of an offensive comment is insufficient as a matter of law to maintain a harassment claim. The court reiterated that racially charged workplace conduct must be sufficiently severe and pervasive so as to interfere with employment.

Harrington v. Disney Regional Entertainment Inc ., 11th Cir., No. 06-12226 (Oct. 19, 2007).

Professional Pointer: In litigation, employers are often called on to articulate the bases for their challenged decisions. As seen in Harrington, an employer’s ability to clearly and succinctly articulate legitimate reasons for complained-of actions provides a useful means to ending such lawsuits prior to reaching a jury. Proper documentation, as relied on in Harrington, serves a dual purpose—assisting, at the moment of the decision, in identifying and explaining the reason for same while providing additional evidence of the basis for an employment decision that might not be challenged until months, or years, after the fact.

Scott M. Wich is an attorney with the law firm of Clifton Budd & DeMaria LLP in New York.

Related Article:

Deconstructing Documentation , HR Magazine, June 2006

Quick Link:

SHRM Online Workplace Law Focus Area

Editor’s Note: This article should not be construed as legal advice.

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