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James P. Tarquin, P.A. Motto
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Can Racial Code Words Be Used To Prove Race Discrimination?

Retro typewriter with message stop racism and social exclusion message written on it

Under Title VII of the Civil Rights Act of 1964 (Title VII), employers are forbidden from discriminating against employees on the basis of race. One method of proving that an employment decision was unlawfully motivated by an employee’s race is to show that discriminatory comments were made by a decision-maker or those in a position to influence a decision-maker. As explained by the U.S. Eighth Circuit Court of Appeals in Erickson v. Farmland Industries, Inc., 271 F.3d 718 (8th Cir. 2001), “evidence of discriminatory attitudes in the workplace” tend “to show that employer’s proffered explanation” for the employment decision was not the true reason. In fact, as observed by the U.S. Tenth Circuit Court of Appeals in Spulak v. K Mart Corp., 894 F.2d 1150 (10th Cir. 1990), courts have “held that [discriminatory] remarks, even if made in jest, are probative of [discrimination.]”

Having fought against race discrimination in the workplace for almost twenty years, our Citrus County, Florida race discrimination attorneys have learned that employers attempt to deny any possible racial overtones of comments made in the workplace, including the use of a racial code word or phrase. However, as explained by the U.S. Third Circuit Court of Appeals in Aman v. Cort Furniture Rental Corp., 85 F.3d 1074 (3d Cri. 1996), courts have held that “the use of code words can . . . violate Title VII” because they can “be seen as conveying the message that members of a particular race are disfavored and that members of that race are, therefore, not full and equal members of the workplace.” As determined by the U.S. Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973), “Title VII tolerates no racial discrimination, subtle or otherwise.” The decision by the U.S. Sixth Circuit Court of Appeals in Thompson v. UHHS Richmond Heights Hospital, No. 08-4435 (6th Cir. 2010) is instructive in showing that courts have recognized the racial motivations behind the use of a code word or phrase.

Supervisor Wanted To “Get Rid” of Troublemakers

In that case, Aleather Thompson (Thompson) claimed that her former employer, Sodexho Management, Inc. (Sodexho), fired her on the basis of race in violation of Title VII. Thompson, who is African-American, was employed by Sodexho as a food production supervisor. Sodexho was a third-party food service contractor for Richmond Heights Hospital. Thompson worked at Richmond Heights Hospital. Thompson’s supervisor was an Executive Chef named Savanick. 

Thompson alleged that Sodexho discriminated against African-American employees who worked at the hospital. Thompson claimed that Savanick gave white employees preferential treatment, required African-American employees to perform harder jobs, and Savanick did not allow her to evaluate or discipline white employees despite her supervisory status. Eventually, Savanick recommended the creation of a new position Chef 1, to “replace” Thompson’s position. Thompson testified that she did not apply for the position because she was unaware the new position was posted and because she was unaware that her position would be eliminated. After she returned from an approved two-week FMLA leave, Thompson was informed that her position had been eliminated due to restructuring of her department.

Sodexho hired a white employee named Hart to replace Thompson. Thompson claimed that after her employment ended, Savanick told Hart that she was a troublemaker. Thompson further claimed that after her employment ended, Savanick told Hart to “get rid” of three other African-American employees because they were also troublemakers.

Code Words Are Evidence Of Racial Animus 

The trial court found that Thompson failed to show that the proffered reason for her termination—the restructuring of her department—was a pretext for race discrimination and dismissed Thompson’s race discrimination claim. On appeal, the Sixth Circuit reversed the trial court’s decision and reinstated Thompson’s race discrimination claim.

In reversing the trial court’s decision, the Sixth Circuit found that Savanick remarks about African-American employees, including Thompson, being “troublemakers” and wanting to “get rid of them” carried racial motivations and implications. Because the remarks reflected racial animus, the appellate court rejected the trial court’s finding that the remarks were “of little weight.” In disagreeing with the trial court finding, the appellate court explained that “[i]n discrimination cases, evidence of animus is difficult to demonstrate,” and remarks by a supervisor referring to African-American employees as “troublemakers’ and wanting to “get rid of them” constituted evidence that the proffered reason for Thompson’s discharge was “an excuse to get rid of Thompson for racially-motivated, discriminatory reasons.”

Free Consultation With Citrus County Race Discrimination Lawyers 

Based in Ocala, Florida and representing employees throughout Central Florida, our Citrus County, Florida employment discrimination attorneys are dedicated to representing victims of employment discrimination. If you have been the victim of race discrimination or have questions about being subjected to racially motivated comments or actions, please contact our office for a free consultation with our Citrus County, Florida race discrimination attorneys. Our employee rights law firm takes race discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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