Today was a good day for the principle that all races deserve respect, with the U.S. Patent and Trademark Office’s surprise ruling that the trademark on the Washington Redskins logo is invalid because it demeans Native Americans. Well done, Administrative Judge Karen Kuhlke.
But if you need to be reminded that hateful racial prejudice still festers, and that even federal judges can be insensitive to it, then you need to read a shocking ruling that came out Tuesday from the U.S. Court of Appeals for the Eleventh Circuit.
There, a group of African-American workers at a Mobile shipyard owned by Austal USA claimed they had been subjected to a hostile work environment. The allegations are nauseating: Their coworkers placed nooses around the shipyard, scrawled vulgar racial graffiti in the men’s restroom, wore clothes made out of Confederate flags and spewed racial slurs. This went on for 10 years. Still, the Eleventh Circuit held in this excruciating 38-page ruling that most of the 24 workers who sued hadn’t cited enough evidence of a hostile work environment to go forward with their claims.
The judges responsible for the ruling are William Pryor Jr., who wrote the opinion, Emmett Ripley Cox and Lee Rosenthal (a Houston district court judge sitting by designation). Even more astounding were the lower court rulings by U.S. District Court Judge Kristi DuBose in Mobile, who had found that only two of those 24 plaintiffs had valid claims.
Even as described by the Eleventh Circuit, the incidents at Austal are stomach- churning. Black employees found eight nooses at the workplace. Several workers said that white supervisors and coworkers called them “boy” and “monkey.” And here’s just a sampling of the graffiti that appeared in the men’s room: “The only people wearing union shirts are the lazy-ass niggers”; “How do you keep 10 niggers from raping your wife, give them a basketball”; “How do you starve a nigger to death? Hide his food stamp card in his work boots.”
The court had to admit that there was lots of evidence of serious racial misconduct at the Mobile shipyard. (Defendant Austal disputed much of the evidence, but the court viewed it in the light most favorable to the plaintiffs.) But the judges downplayed how those vile incidents might affect individual workers.
For example, it concluded that plaintiff Robert Adams didn’t work in a hostile environment. Yes, he regularly saw racist graffiti in the men’s restroom, and yes, he saw his coworkers wear the Confederate flag on a regular basis. He heard coworkers call African-Americans “nigger,” but that was only a few times. And while he heard about the nooses, he didn’t actually see one. So what’s the big deal, the court basically said. Stop complaining.
Rahman Pratt, didn’t have anything to complaint about either, according to the court. He overhead a white coworker talking about another black employee, saying he would “hang that nigger and shoot that nigger,” and heard him call black people “monkeys.” He also saw the restroom graffiti and his coworkers’ Confederate flag shirts. But, the court pointed out, none of the graffiti was directed at him personally, and the conversation he overheard was isolated and not directed at him. So was this really so bad?
They did, however, overrule the district judge, DuBose, and find that plaintiff Tesha Hollis might have a valid case. In the three years that she worked at Austal, she discovered two nooses on the job and heard supervisors call African-American men “boy” and “monkey.” In addition, her supervisor pretended to masturbate in front of her while telling her that a racist and perverse drawing of her appeared in the men’s room. Even for this Eleventh Circuit panel, that was too much.
But for DuBose it wasn’t. In her ruling she reasoned that these racial threats and insults against Hollis weren’t sufficiently “frequent, severe, physically threatening (apart from the nooses) or humiliating or demeaning (apart from the one drawing of her in the men’s bathroom).”
Stop for a minute and let it sink in that a federal judge actually wrote this. “Apart from the nooses,” plaintiff Hollis wasn’t threatened, and “apart from the drawing of her in the men’s bathroom,” she wasn’t demeaned. And apart from the shooting, Mary Lincoln had a great time at the theater. It’s so outrageous that it could almost be a joke.
In the end, the Eleventh Circuit ruled that Hollis and six other plaintiffs should have been allowed to take their cases to trial. But it affirmed summary judgment rulings against six others, including Adams and Pratt. It also affirmed two jury verdicts in favor of Austal.
I reached out to Austal and its lead lawyer, Thomas O’Hara of Mobile’s McDowell Knight Roedder & Sledge, but did not hear back.
I’m just glad these judges weren’t handling the Redskins trademark case.
Summary Judgment is American Lawyer senior writer Susan Beck’s regular opinion column for the Litigation Daily.