Thursday, December 17, 2009

It looks like Whirlpool might have a nationwide policy of corporate-sanctioned racism carried out by supervisors/management against employees (the 6th Circuit Court of Appeals is in Texas; post below is occurring in the Benton Harbor, Michigan WP facility)

White Employees Sticking Up For Black Friends Can't Be Discriminated Against
March 9, 2009 by Ellen Simon

Is it illegal to discriminate against a Caucasian employee against because of her friendship with and advocacy for African-American co-employees? According to a new decision from the Sixth Circuit Court of Appeals, Barrett, et al v. Whirlpool Corporation, the answer is yes.

In this important case, three Caucasian production workers sued Whirlpool claiming that they were retaliated against and subjected to a hostile work environment. They said it was because they were friendly with African American co-employees and stuck up for them when faced with racial hostility at work.

Title VII of the Civil Rights Act of 1964, and 42 U.S.C. Sec.1981 both forbid discrimination on the basis of association with or advocacy for non-whites.

While admitting that association discrimination claims could be valid, Whirlpool contended that the plaintiffs' claims fell short because the associations with their black co-workers were only casual work friendships and not the type protected under these statutes. Only a significant association that extends outside of the workplace could give rise to a claim according to Whirlpool.

Put another way, Whirlpool argued that the only kinds of association claims which can be brought are the kind where an employee was discriminated against because of an intimate or family relationship with a minority like the cases where:

* an employer discharged an employee after leaning that his daughter was bi-racial (see 6th Circuit Court of Appeals, Tetro v. Elliott Popham Ponitac, Oldsmobile, Buick, & GMC Trucks, Inc.) or
* an employer discharged an employee upon learning of an interracial marriage (see llth Circuit Court of Appeals, Parr. v Woodman of World Life Ins. Co.)

The Court rejected this argument and held (like the7th Circuit Court of Appeals in Drake v. 3M ) that associational discrimination could be found in the case of friendship between co-workers of different races:

If a plaintiff shows that 1)she was discriminated against at work 2) because she associated with members of a protected class, then the degree of the association is irrelevant. … The absence of a relationship outside of work should not immunize the conduct of harassers who targets an employee because she associates with African-American co-workers.

While the Court of Appeals found insufficient evidence to support two of the employees claims, it found in favor of the third -- Treva Nickens, a Caucasian woman who worked at Whirlpool since 1983 and testified:

* it was commonplace to hear racist jokes and racist slurs including he word “nigger”
* she complained on a daily basis about theses comments but that her supervisor refused to do anything to stop it.
* she was harassed for “hanging around with blacks”
* she was told that “she needed to stay with her own kind”
* when she reported the conduct she was physically threatened
* she was directly harassed by her supervisors
* she was denied promotions for higher paying jobs because she spoke out on behalf of her African American friends.

The Court also held reaffirmed the proposition that advocacy on behalf of African-American co-workers was protected. According to the Court:

As long as a plaintiff offers proof that she was, in fact, discriminated against because she advocated for protected employees, she may state a discrimination claim under Title VII.

The bottom line is that when friends stick up for their minority co-workers in the face of discrimination or harassment, and as a result are subjected to a hostile work environment, there is legal protection. I don't remember seeing another case quite like it.

What's more, there is little doubt that its reasoning extends beyond race and can be relied upon to protect co-workers who stick up for women, the disabled, or anyone else in a protected class if the individual is then harassed because of it.

This is an excellent case for the promotion of fairness and dignity in the workplace and one that all managers and human resource professionals should keep in their back pocket.