From Meyers, Roman, Friedberg & Lewis There exists only one workplace environment in which a white employee can keep his job after yelling the following at a group of African-American employees.
- “Hey, did you bring enough KFC for everyone?”
- “Go back to Africa, you bunch of f***ing losers.”
- “Hey anybody smell that? I smell fried chicken and watermelon.”
A gold star for you if you answered a picket line, when the comments are made by striking workers and are directed at a group of replacements crossing said picket line. Or at least this is the majority finding of the 8th Circuit Court of Appeals in Cooper Tire & Rubber Co. v. NLRB [pdf].How could a court reach this (incorrect) conclusion?
- Courts show deference to decisions of administrative agencies, and the NLRB found that Cooper Tire unlawfully terminated the picketer.
- The picketer’s comments, while racist and offensive, were not accompanied by threats or violence.
- The offensive words were “part of a package of verbal barbs thrown out during a picket line exchange” or were of a “message dealing with the morals and character of crossovers generally,” and did not target a specific replacement worker.
The better argument? Look no further than the dissenting opinion of Judge C. Arlen Bean:
No employer in America is or can be required to employ a racial bigot. Indeed, … the court’s requiring of the petitioner to do so here, is tantamount to requiring that Cooper Tire violate federal anti-discrimination and harassment laws …. Engaging in union organizing or efforts to vindicate protected labor activity does not insulate the volatility and heinous nature of racist, or sexist, remarks. … Discriminatory and degrading stereotypes are not legitimate weapons in economic disputes carried out on the picket line.Amen.