The Supreme Court says employees should be encouraged to report harassing conduct before it becomes severe or pervasive. How, then, can a large company argue that it has the right to fire an employee for reporting a crude, racist remark by a co-worker? More to the point, how can it win?

On May 12 the 4th U.S. Circuit Court of Appeals held, in a split decision, that IBM could lawfully fire Robert Jordan, an African-American, for complaining that a co-worker had called the snipers in the Washington, D.C., metropolitan area “two black monkeys” who should be put “in a cage with a bunch of black apes and let the apes fuck them.”