One would think it to be easy to avoid racism claims in the workplace: simply do not engage in racist behavior. But life, and race relations, are not that easy.
By analyzing an ongoing case in the small town of Orting, Washington, this edition of the HR Law Insider addresses (1) the difficult nature of race issues in the workplace and (2) how businesses can put systems in place to avoid race claims.
“WHITE CITY” HIRES ITS FIRST BLACK POLICE OFFICER
Orting, Washington is a small town southeast of Tacoma. According to the Washington Post, in the fall of 2013:
“The place once known as “The White City,” in part for its lack of diversity, had hired a black police officer, its first since the town’s founding in 1889.
NOT SO “HARMLESS” JOKES AND PERCEIVED SLIGHTS
Race claims oftentimes involve similar fact patterns:
- Jokes initially thought to be harmless are later deemed malicious;
- Discipline meted out by a business is challenged as discriminatory — with examples of how non-minorities are allowed to skirt work rules; and
- A termination justified and substantiated by a business is attacked as discriminatory and retaliatory by the alleged victim — leaving a judge or jury to sort things out.
Gerry Pickens’ claims against the town of Orton Washington contain all these features. As reported by the Washington Post:
“[I]t surprised Gerry Pickens when he arrived back in Orting in the fall of 2013 that one of the first jokes he heard featured him as the punch line. A resident had seen Pickens on patrol and called 911. “There’s a police car being driven by a black juvenile,” the resident had reported, and for the next several weeks some of Pickens’s co-workers had referred to him as the “black juvenile.” What he wanted to tell them was that he wasn’t a rookie, and that he had responded to more 911 calls than any of them while working in Atlanta — but maybe it wasn’t meant to be racist so much as it was just a bad joke. He decided to laugh. He decided, then and again, not to blame his experiences on race.
Maybe it was because he had the least seniority that he had been given an older car, with a battery that occasionally went dead when he turned on his police lights. Maybe the police chief was only trying to be thoughtful when he mentioned, in Pickens’s memory at least three times, that Pickens should be vigilant about his self defense because Orting was an old-fashioned place that believed in the Second Amendment, where white supremacist groups remained active and well armed. And maybe Pickens had only himself to blame when his imagination began obsessing about those groups between 2 and 6 a.m., when he was the only officer on duty. He sometimes wondered: If one of those groups ambushed him, would anyone provide backup? How long before help would arrive?
Only when the police chief suspended Pickens for a week in April 2014 did he become convinced that racism was the cause, and that it was no longer enough to act grateful and smile back. Another Orting officer had been able to stay at work while being investigated for using excessive force on a teenager; Pickens was sent home based on an accusation of lifting weights at a local gym without paying for the visit. Pickens decided not to complain directly to the chief or his supervising lieutenant. “I didn’t want to have the race talk with anyone I saw every day,” he said. Instead he called the mayor, Joachim “Joe” Pestinger, and they met at a park.
“I keep saying to myself that this doesn’t have anything to do with my race, but something’s going on,” Pickens said he told the mayor that day.
THE TOWN’S CASE AGAINST PICKENS: HE WAS A BAD EMPLOYEE
As in any race case, there are two sides to the story. As reported by the Washington Post, the town police chief Bill Drake alleges Pickens was simply a bad employee:
“[After] Pickens started so did a succession of problems. According to a document Drake later provided to the Equal Employment Opportunity Commission, Pickens disappeared from radio contact during his shift, approached a high-risk traffic stop with his hands in his pockets, ignored advice from his training officer and submitted sloppy accident reports that were left two-thirds empty. While Drake’s other officers averaged about eight citations a month, Drake reported that Pickens wrote one or two. Maybe he really was establishing trust with teenagers when he played basketball in his uniform, but in the monthly statistics, that added up to a lot of loafing around. “There are motivational issues,” an officer in charge of training Pickens told Drake, so the chief began devoting time to counseling Pickens himself.”
Drake counseled Pickens about his performance in March, wrote him a letter in April and spoke to him again in August. The two men never discussed race. Pickens never said what it was like to be the first black officer in Orting. Drake never asked.
“Orting is a small town, and nothing goes unnoticed here,” was as far as Drake would go.
“Obviously, my situation is a little unique,” was all Pickens would say.
PICKENS’ TERMINATION AND SUBSEQUENT $5,000,000 CLAIM AGAINST THE TOWN
Pickens was terminated for “unsatisfactory performance” on September 9, 2013.
At first, Pickens alleges he had no intent to sue the town. Then, according to the Post, unable to find a new job, Pickens’ life began a downward descent and he reconsidered:
“Pickens expanded his search and applied for police jobs in Oregon and California. He made appointments with a psychologist and lost 20 pounds, which he attributed to stress. He signed up for unemployment insurance and stayed home with his 2-year-old daughter, taking her to the playground in downtown Orting where he could watch the police cars cruise by as the pressure built in his chest. “They took my manhood, my income, my security,” he said. “They thought I was just some dumb black guy who would take unemployment and kick rocks.” He began writing down all the ways he thought he’d been discriminated against: co-workers who called him a “token black guy,” discrepancies in his vacation time and racial epithets shouted at him by a resident when he responded to a disorderly conduct complaint. He compiled testimonials from supporters until one morning a neighbor came banging on his door. She screamed something about his truck, and he followed her outside. His daughter saw it first. She said somebody had drawn on it with a crayon, but she was too young to read the words. “Nigger,” it read on one side. And then, on the other: “Sue cheif and pay.”
Pickens has filed a charge of discrimination with the EEOC and is demanding that the town pay him $5,000,000 in damages. As reported by the Post: “We don’t have $5 million to spare,” the mayor said, thinking about Pickens and his demand. Even if the town did have some kind of insurance to help cover it, he had made up his mind. “I don’t want to settle for one dollar, if it’s my choice,” he said. “This is a false accusation, and I don’t want to give it any merit.”
HR LESSONS FROM THE ORTING, WASHINGTON DEBACLE
Pickens v. Orting Washington will be resolved via a court battle or thru settlement. Either way, the damage to both Pickens and the town is immeasurable.
Here is a list of steps your business can take to avoid race claims:
- Once a year have legal counsel conduct a training session with management and supervisors on workplace discrimination
- Ensure you have clear policies on workplace discrimination, including policies prohibiting jokes, innuendo, inappropriate emails, etc.
- Ensure your policies are consistently enforced and reinforced with your employees
- Ensure you have a clear procedure in place for employees to complain about perceived race discrimination, and that you follow that procedure
- Look for obvious and subtle signs of discontent among employees who may believe they are being singled out because of their race or other status
- When considering discipline, always ask: do I have sufficient facts and can I support this discipline as non-discriminatory
- Carefully document any discipline
- Consult legal counsel on moderate to high risk terminations, or when there is any concern about a pending decision to terminate an employee