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href="http://www.latimes.com/news/nationworld/nation/la-na-scotus14apr14,0,391311.story?track=ntothtml">http://www.latimes.com/news/nationworld/nation/la-na-scotus14apr14,0,391311.story?track=ntothtml</A><BR>
<H1>Justices weigh limits on racial slurs in the workplace</H1>
<DIV class=storysubhead>The Supreme Court may hear the case of a black computer
technician fired after he complained about a co-worker's comment.</DIV>By David
G. Savage<BR>Times Staff Writer<BR><BR>April 14, 2007<BR><BR>WASHINGTON — The
Supreme Court weighed Friday whether to limit racial slurs in the workplace just
as two broadcast networks were firing radio host Don Imus for his demeaning,
racist comments on air. <BR><BR>The justices were considering an appeal from a
black computer technician who was fired from his job at IBM after he complained
that a white co-worker had loudly referred to a pair of crime suspects as "two
black monkeys in a cage." <BR><BR>The case, which the court may act on as soon
as Monday, starkly tests whether the nation's civil rights laws protect
employees who complain about racist or sexist comments by co-workers.<BR><BR>It
began in October 2002 when two snipers had been terrorizing the Washington area.
On the day they were captured, Robert Jordan, the black technician, was watching
a television along with several others at an IBM site in suburban Maryland. The
two captured men were black.<BR><BR>"They should put those two black monkeys in
a cage with a bunch of black apes and let the apes [sexually assault] them," one
of the white employees declared. <BR><BR>Shocked and disgusted by what he had
heard, Jordan asked other employees about the comment and was told they had
heard similar statements from the same person in the past. <BR><BR>"It really
bothered me, and I went to my manager," Jordan said in an interview. "I didn't
want him to lose his job, but I thought they should tell him he can't say things
like that." <BR><BR>But the complaint backfired: Jordan's work schedule was
changed, and a month later, he was fired. "The reason I was given was that I was
being disruptive," Jordan said. <BR><BR>According to the court record, the IBM
supervisors questioned the white employee, who admitted saying only, "They
should put those two monkeys in a cage." <BR><BR>What was most surprising for
Jordan's lawyers was what happened next.<BR><BR>A federal judge and the U.S. 4th
Circuit Court of Appeals in Richmond, Va., threw out his race-bias lawsuit
against IBM on the grounds that "an isolated racial slur" did not rise to a
civil-rights violation.<BR><BR>Judge Paul Niemeyer recounted the "two black
monkeys" comment and described it as "a single, abhorrent slur prompted by,
though not excused by, a breaking news report…. No objectively reasonable person
could have believed that the IBM office was infected by severe or pervasive
racist, threatening or humiliating harassment," he wrote in the 2-1 decision.
<BR><BR>Because Jordan could not show a pattern of racial harassment, he had no
legal protection against being fired for reporting the incident, the appeals
court said.<BR><BR>"We cannot discern in his claim any way that Jordan's race
factored into his termination," Niemeyer concluded.<BR><BR>The dissenting judge
noted that the Supreme Court has repeatedly said employees should report
incidents of sexual and racial bias to their supervisors. <BR><BR>The U.S. Equal
Employment Opportunity Commission, the National Employment Lawyers Assn. and
several civil rights groups intervened on Jordan's side, but the full appeals
court split 5-5 last fall on whether to reconsider the panel's ruling, thereby
upholding Niemeyer's opinion.<BR><BR>The Virginia-based appeals court is
considered the nation's most conservative, yet five of its judges signed a
statement that "urges the Supreme Court to accord serious consideration" to
Jordan's appeal. <BR><BR>On Friday, the justices met behind closed doors to
review pending appeals and to decide whether to take up Jordan's appeal.
<BR><BR>"This is an outrageous situation, and I'm optimistic the court will
agree to hear this case," said Stephen Chertkof, a Washington lawyer who filed
an appeal for Jordan.<BR><BR>Most employees who hear crude insults at work
probably believe they should report the comment, said Jonathan Puth, an
employment discrimination lawyer in Washington.<BR><BR>Jordan "didn't want to
work in a place where employees are free to spew racial hatred. If a worker is
called the N-word, or a woman receives a single pornographic e-mail, an employee
would think a supervisor would want to know about that," Puth said.
<BR><BR>"Until now, the law has encouraged them to report it. This case seems to
change the equation. That's why we think it's of exceptional importance," said
Puth, who filed a brief on behalf of the employment lawyers' group.
<BR><BR>Lawyers for IBM told the court that the case "presents no important
questions of federal law" and should be rejected.<BR><BR>"Jordan could not have
reasonably believed that the isolated co-worker's statement, not directed to
[him], and not related to the workplace, created an unlawful hostile work
environment," they wrote. <BR><BR>Glen Nager, a Washington lawyer who performs
work for IBM, stressed that the company counseled the white employee after the
incident.<BR><BR>"IBM would in no way condone that comment," he said. "IBM cares
about having a diverse workplace." <BR><BR>But because the lawsuit was dismissed
before a trial, Nager agreed the company had to accept the facts as presented in
Jordan's complaint.<BR><BR>"This involved a nonsupervisory employee," Nager
said. "The law is pretty clear that isolated comments do not give rise to a
cause of action." <BR><BR>
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<I>david.savage@latimes.com</I></DIV></BODY></HTML>