Wednesday Federal Employment Law Update

Hello all, and welcome to your Wednesday Federal Employment Law Update! 

First, for our new feature, the most entertaining search engine term used to locate this blog from yesterday was “catfight asstar,” which led one fan of whatever the heck “catfight asstar” is to my Celebrity Apprentice review discussing a potential catfight between Star Jones and Nene Leakes!

Onto our more serious business.  Today we discuss a case from my home Circuit, the Eleventh, involving reverse discrimination at Lockheed Martin.  In Smith v. Lockheed-Martin Corp., 2011 WL 2567777 (11th Cir. June 30, 2011), the Eleventh Circuit reversed a summary judgment for LM in a case brought by a former white employee who was fired after distributing a racially insensitive joke e-mail (Top 10 Reasons Why There Are No Black Drivers in Nascar) to other employees in violation of LM’s zero tolerance policy for such material. 

Smith, a supervisor, did not contest that he violated the policy, but rather argued that LM had a recent history of treating black employees more favorably for like violations.  In one example, a black employee was given a two-week suspension rather than termination after distributing a clip showing videos of white people dancing.  The lower court granted summary judgment to LM, finding that the black employee discussed was not a “comparator” to Smith because the black employee was not a supervisor. 

On appeal, the Eleventh Circuit reversed the granting of summary judgment, citing to other facts in the record regarding other instances of racism at LM against blacks which may have motivated the company to treat white employees less favorably due to media scrutiny regarding a prior hate crime against black employees at a Mississippi LM facility.  The Eleventh Circuit did not decide the case in Smith’s favor, but rather just held that enough circumstantial evidence of potential discrimination permit the case to proceed to trial.

This was a tough pill to swallow for the employer.   LM had a pre-existing zero tolerance policy which permitted LM discretion to terminate an employee, and it did so.  Moreover, other factors between the two incidents distinguished them in a way that the lesser punishment of a two-week suspension was understandable.  The employer must be given some breathing room to enforce its policies as appropriate.  I didn’t agree with this one…


 THE COMMENTS ON THIS BLOG DO NOT CONSTITUTE LEGAL ADVICE.  NOR DO THEY CREATE AN ATTORNEY-CLIENT RELATIONSHIP.  They are provided for informational purposes only.  Actual legal advice can only be provided after consultation with an attorney licensed in your jurisdiction.

Explore posts in the same categories: Federal Employment Law Updates

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