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Jul 30, 2013 01:46 PM

On July 17, 2013, the United States Court of Appeals for the Sixth Circuit reinstated a harassment and retaliation suit filed by a former employer of an equipment manufacturer who was fired and claimed that he was subjected to a racially hostile work environment. The employee, an African American, was verbally reprimanded for wearing a T-shirt supporting Barack Obama’s 2008 election, and his supervisor allegedly threatened to kill him if Obama won the election. In addition, the manufacturer’s upper management was alleged to have unequally withheld work form African-American employees and promulgated a policy that prohibited political paraphernalia from the workplace, but still allowed white employees to express their support for John McCain. The employee was terminated after he suffered a back injury at work and he filed a claim alleging that he was subjected to a racially hostile work environment and that he was retaliated against for engaging in protected conduct, in violation of Title VII of the Civil Rights Act of 1964. The Sixth Circuit in Paasewe v. Action Group, Inc., No. 12-3701 (July 17, 2013), concluded that reasonable jury could conclude that the supervisor’s alleged harassment and intimidation of the employee, coupled with the employer’s unresponsiveness to the employee’s complaints regarding that harassment and upper management's remarks and conduct toward the employee, created a racially hostile work environment.

Eric Paasewe, a man of African origin, worked as a grinder for Action Group Inc. (Action Group) from July 2008 until December 2008. He claimed that right from the start, he was subjected to harassment at Action Group. He alleged that several supervisors and employees remarked a number of times that the car he drove to work was too expensive for a black man earning $ 10 an hour and asked him what he did outside of work to be able to drive such an expensive car. In mid-August 2008, Paasewe went to work wearing a shirt in support of then-presidential candidate Barack Obama. A white Action Group employee, Tim Seitz, called Paasewe “boy,” told him not to wear the Obama shirt again, threatened to kill Paasewe and Obama if Obama won the election, and remarked that Paasewe should take Obama back to Africa to vote for him. Although an Action Group manager held a meeting with employees and issued Seitz a verbal warning that such comments would not be tolerated, no further disciplinary action was taken. When Paasewe told management that he was going to report the company if it refused to report Seitz to the police for his threats, several supervisors threatened to fire Paasewe for absences he had in July, although the human resource director informed them that she had excused those absences.

In September 2008, Action Group told all grinders to stay home for one day because there was no work. Thereafter, the company turned around and called two white grinders into work. In response to the August incident, Action Group decided to prohibit political paraphernalia from the workplace. But the human resource director, who was white, brought in pins and fliers supporting presidential candidate John McCain. When Paasewe complained, he alleged that he was told to stay out of the company's business if he wanted to keep his job. Then, a few days later, the human resource director gave McCain fliers to a black employee and told him to pass them out to "his community." Paasewe sustained a back injury at work on December 5, 2008. He attempted to return to work on December 16. Although the parties dispute the circumstances of Paasewe's attempt to provide a return-to-work slip on December 16, the company terminated him in early January 2009, with his termination made retroactive to December 17, 2008, for insurance purposes.

In November 2009, Paasewe filed a Title VII action, alleging that he was subjected to a racially hostile work environment and that he was retaliated against for engaging in protected conduct. Action Group moved for summary judgment. Paasewe moved for judgment on the pleadings. The district court granted Action Group's motion and denied Paasewe's motion, ruling that Paasewe failed to establish a prima facie case as to both discrimination claims. Paasewe timely moved for a new trial. The district court construed Paasewe's motion as one for reconsideration and denied it.

On appeal, the Sixth Circuit found that Paasewe had met his burden of showing a prima facie case of a racially hostile work environment. The court found that Paasewe had shown that (1) he was a member of a protected class; (2) he was subjected to unwelcome racial harassment; (3) the harassment was race-based; (4) the harassment unreasonably interfered with his work performance “by creating an intimidating, hostile, or offensive work environment”; and (5) the employer was liable. Barrett v. Whirlpool Corp., 556 F.3d 502, 515 (6th Cir.2009). As to the fifth element, the court noted that even assuming that Action Group took reasonable, good-faith steps to address the August 2008 Seitz incident by holding a meeting with employees and issuing a verbal warning, Action Group took no action in response to Paasewe's subsequent complaints about Seitz's conduct, and there were issues of material fact concerning the conduct of Action Group's management toward Paasewe.

Additionally, the Sixth Circuit found that Paasewe had met his minimal burden of establishing a prima facie case of retaliation. Paasewe was required to show that: (1) he engaged in protected conduct, (2) the employer knew that he had exercised his protected rights, (3) the employer took an adverse employment action against him, and (4) there was a causal connection between his protected activity and the adverse employment action. Fuhr v. Hazel Park Sch. Dist., 710 F .3d 668, 674 (6th Cir. 2013). The court ruled that a reasonable jury could infer retaliatory motive from the totality of the circumstances, including temporal proximity of only a few months between Paasewe's complaints and his termination; and the comments of the human resource director and company president to the effect that if Paasewe wanted to keep his job, he should stay out of the company's business, and the president's accompanying reference to Paasewe as “boy” during that exchange. Thus, finding that the district court had erred in granting summary judgment to Action Group, the Sixth Circuit reversed the decision and remanded the case for further proceedings.

Paasewe is an example of egregious discriminatory behavior by an employer. It is also an example of a poorly conducted internal remedy after discovering that discriminatory activity has taken place. When effectuating political discourse policies at work, private employers generally have broad discretion to control and prohibit political discourse or support as long as they administer these policies even-handedly. An employer’s best practice is to implement a non-solicitation policy that prohibits all forms of solicitation—including political campaigning—during working time. Political conversations often border conversations focusing on race, sex or religion and can easily provide potential grounds for harassment, race, religious, age and/or gender, among other forms of discrimination, retaliation or other types of workplace complaints. Therefore, employers are advised to carefully consider their workplace policies and advise an employment attorney for consultation.

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