Crude Comments Keep Race Discrimination Claim Alive

By Stefanie M. Renaud Jun 15, 2017

A human resources manager terminated for poor performance can move forward with his claim of race discrimination, partly because of a supervisor's crude comments, while his claims for retaliation and a hostile work environment were dismissed by the U.S. District Court for the Southern District of West Virginia.

Kenneth Rogers worked for Constellium Rolled Products Ravenswood LLC as the vice president of human resources for North America. During the nine months that he was employed, Rogers—the only black member of senior management in the North America Group—alleged that his supervisor, Marc Boone, engaged in race, gender and age discrimination.

Rogers claimed that he was subjected to race discrimination because Boone told a racially focused, off-color joke concerning differences between the genitalia of white and black men during a work retreat where Rogers was the only black person present. Boone allegedly subsequently referenced this joke on two separate occasions, both times while standing next to Rogers at a urinal and after glancing at Rogers' genitals.

Rogers also maintained that Boone had engaged in gender discrimination by allowing a former employee, accused of sexual harassment, to enter the workplace on three occasions. Although Rogers repeatedly objected to this course of action, Boone disregarded him. While on Constellium premises, the accused harasser came into contact with an alleged victim, who subsequently complained.

Finally, Rogers claimed that Boone displayed a distinct preference for hiring younger individuals, even e-mailing Rogers to express his desire to hire someone younger than a recommended applicant. Rogers insisted that Boone hire the older applicant because he believed not doing so could be age discrimination. Rogers was terminated three months later, allegedly because he objected to Boone's discriminatory actions.

[SHRM members-only toolkit: Involuntary Termination of Employment in the United States]

During his employment, Rogers received poor performance ratings. In his only annual review, Boone rated Rogers as having "insufficient performance" and gave him only a two out of five on "overall performance." The same month, however, Boone rated Rogers as "100 percent on target" for his monthly objectives. Although technically disqualified because of low performance ratings, Rogers was paid a performance bonus. Nine months after hiring him, Constellium terminated Rogers for poor performance and allegedly fraudulent conduct in connection with an executive benefit program.

Rogers then sued Constellium, alleging that he was subjected to racial discrimination, a racially hostile work environment, and retaliation for complaining about Boone's alleged gender and age discrimination.

Constellium argued that Rogers was not retaliated against because his objections to the alleged discrimination fell within his HR responsibilities and, therefore, were not protected conduct.

The court rejected this argument, finding that HR managers can engage in protected conduct by actively supporting employees who are asserting their rights or by personally complaining about discriminatory employment practices. Even so, the court dismissed both retaliation claims, finding that Rogers' complaints were not protected conduct and there was no causal connection between his objections and his termination.

The court also dismissed Rogers' hostile work environment claim, despite Boone's "crude" and "boorish" comments, because the comments were infrequent, not "particularly egregious" and did not reasonably interfere with Rogers' work performance. Notably, Rogers and Boone worked on separate continents, communicated mostly by e-mail, rarely interacted in person and did not routinely share a workspace.

Rogers' race discrimination claim was more successful. The court allowed this claim to be heard by a jury because Rogers showed that Constellium's reasons for terminating him—poor performance and allegedly fraudulent conduct—could be pretext for impermissible race discrimination. Finally, the court noted that Boone's "racially-charged allusions to [Rogers'] genitalia" were "evidence of direct discrimination."

Constellium Rolled Prod. Ravenswood LLC v. Rogers, S.D. W. Va., No. 15-13438 (April 28, 2017).

Professional Pointer: Jokes with racial, religious or sexual undertones are inappropriate at work and could result in employer liability. Employers should consider revisiting their harassment policies to ensure they contain clear prohibitions against—and impose discipline for—inappropriate or harassing jokes and then ensure that these policies are consistently enforced.

Stefanie M. Renaud is an attorney with Skoler, Abbott & Presser P.C., the Worklaw® Network member firm in Springfield, Mass.


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