Allegation of Race Discrimination Does Not Negate Firing for Harassment

Takeaway: Although a race discrimination claim may be made under Title VII of the Civil Rights Act of 1964 and under 42 U.S.C. Section 1981, the standards of proof differ. In a Title VII claim, race may be part of a mixed motive to show evidence of discriminatory intent. A Section 1981 claim requires proof that race was a but-for cause of an adverse employment action—that the action would not have been taken but for an employee’s race.

Including racial information in an HR document requesting approval to terminate an employee is not sufficient to show that the employer’s stated reason for firing the employee—multiple incidents of sexual harassment—was pretext, the 11th Circuit Court of Appeals ruled.

The employer was a meteorologist for a local news station. He had started with the station in 2012 as a temporary weekend weather forecaster and eventually been promoted to chief meteorologist in 2017, until his termination in 2019. During his time with the station, several female co-workers filed complaints that the employee had engaged in inappropriate conduct and sexual harassment.

First, in 2017, just a few months before he was promoted to chief meteorologist, a female co-worker reported that the employee had used a sexually vulgar term to describe her behavior and had also told her that he had a dream about them having sex. She said he also had shared sexually inappropriate comments with her in conversations. The employee received a written warning for “poor judgment” and was told that further incidents could result in additional discipline, including possible termination.

Then, just a few months after his promotion, another female colleague complained he had sent “highly inappropriate” comments to her on Facebook. The messages included telling her that he fantasized about her and wanted to have sex with her and asking her to send him nude photos. When confronted with the complaint, the employee claimed he was trying to establish an off-duty relationship with the co-worker and apologized for making her uncomfortable. A final written warning was issued for violating the company’s sexual harassment policy.

Finally, in 2019, the employee approached another female co-worker to tell her that he always looked at her and that she was very pretty and attractive to him. After initially thanking him, the employee felt uncomfortable and reported the incident to her husband and HR. This time, the station suspended the employee pending a decision by the general manager (GM) on how to proceed.

After a discussion of the incidents, the GM and supervisor agreed that the employee should be fired, and HR sent a report of the incidents and a recommendation for termination to the vice president of HR for approval. Included was a form called an equal employment opportunity (EEO) analysis, which was used with any discharge, job elimination, restructuring or reorganization. The analysis included information on the employee’s race, the race of the other members of the weather team, and the impact the termination would have on the demographics of the team.

The vice president (VP) of HR authorized the termination, and the employee was fired four days after being suspended. He was replaced three weeks later by a Hispanic meteorologist who had more seniority at the station.

The employee, who is white, filed a lawsuit claiming he was terminated because of his race so that the station could increase its diversity. Rather than file a mixed-motive claim under Title VII, he filed a Section 1981 claim citing the EEO analysis as direct evidence of racial discrimination. Section 1981 prohibits intentional race discrimination in the making and enforcement of public and private contracts, including employment contracts. However, the district court ruled that the EEO form did not show the direct evidence needed to support his claim, and it dismissed the case.

The employee appealed to the 11th Circuit, arguing again that the racial information in the EEO analysis showed direct evidence of discriminatory intent. Even if it did not, the station had not shown a valid, nondiscriminatory reason for firing him, and he had shown their reasons to be pretext, he claimed.

The court explained that direct evidence was a high standard requiring an employer to issue blatant statements showing a firing was for an unlawful, discriminatory reason such as race. “The EEO analysis does not meet—or even approach—this standard,” the court wrote.

However, the dissent argued that the form and the station HR director’s testimony created a reasonable, logical inference that the VP of HR considered race when deciding whether to terminate the employee, specifically the impact on racial group balance. The majority countered, saying that inferences can be based only on evidence, not on speculation.

“No reasonable jury could conclude from the bare fact that this document includes data on the race of all weather employees at the station that [the employee] was fired because of his race,” the majority wrote, noting that “it is just as likely (which is to say entirely speculative)” that the data on race was used in favor of the employee. “We have no evidence either way."

The court also quickly dismissed the employee’s remaining arguments, ruling that violating the company’s sexual harassment policy was a valid, nondiscriminatory reason for termination and the employee had not shown any evidence of pretext.

Ossmann v. Meredith Corp., 11th Cir., No. 22-11462 (Sept. 8, 2023), petitions for rehearing and rehearing en banc denied (Nov. 2, 2023).

Robert S. Teachout, SHRM-SCP, works in the Washington D.C., area and is a legal editor for Brightmine™ HR & Compliance Centre, a service helping HR build successful and purposeful workplaces.