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Ellis v. CCA of Tennessee, No. 10-2768 (7th Cir. June 9, 2011)

In a race harassment case, the Seventh Circuit recognizes that innocent-appearing media can be used in a hostile context to perpetuate abuse of racial minorities by insinuation. It finds in this case, though, that the publication - a book titled THE ONE MINUTE MANAGER MEETS THE MONKEY - was not being used for a racially-hostile purpose.

Ellis v. CCA of Tennessee, No. 10-2768 (7th Cir. June 9, 2011): Eight plaintiffs - all African-American nurses working in a prison - claimed Title VII and § 1981 hostile work environment violations (only four plaintiffs appealed, though). The plaintiffs alleged, among other things, that the hospital administration deliberately split up the black nurses into different shifts to limit contact between them. Attempting to give this a racial context, the plaintiffs pointed to an excerpt of a management theory book found in the supervisor's office, Kenneth Blanchard, William Oncken, Jr., and Hal Burrows, THE ONE MINUTE MANAGER MEETS THE MONKEY (1989). Plaintiffs contended that the title and contents suggested that the manager looked upon employees as "monkeys."

The panel allows that the ory that a benign text can be used in a racially-hostile way is not so far-fetched:

"Plaintiffs feel the excerpt and marginaliare racist, and they seem to maintain that the excerpt's discovery helped spark a hostile work environment. The latter notion is conceptually sound, as writings may be used in ways unintended by authors. See, e.g., Salil Tripathi, Enraged by Madonna and Nicole, NEW STATESMAN 28 (Sept. 20, 1999) (discussing the objection of Hindus to the use of a verse from the Bhagavadgita in Stanley Kubrick's Eyes Wide Shut). One can easily imagine that other employees in a workplace might hijack the anthropomorphic monkey management sketch and use it for racist ends. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996) (observing that it 'has become easier to coat various forms of discrimination with the appearance of propriety' because the threat of liability takes that which was once overt and makes it subtle).

But the panel rejects that any racial innuendo was intended here:

"As to the materials excerpted from THE ONE MINUTE MANAGER MEETS THE MONKEY, we will take as a given that plaintiffs found the material subjectively hostile. Their case founders on the objective component-that is, what a reasonable person would find offensive or hostile. The book is plainly directed at management concerns, and the metaphor employed by the book (monkeys represent workplace problems) is unlikely to cause confusion. Compare, e.g., Patrick White, The Key in "Ulysses," 9 JAMES JOYCE Q. 10 (Fall 1971). Moreover, the management book is a spin-off of a classic article that was first published in the Harvard Business Review in 1974. See William Oncken, Jr., and Donald L. Wass, Management Time: Who's Got the Monkey?, 99 HARV. BUS. REV. 178 (1999) (reprinting the article as a 'classic' and noting that it 'has been one of the publication's two best-selling reprints ever')."

The Seventh Circuit also has occasion, in the same decision, to hold that the presence of Confederate flag insignia in the workplace may also be deemed racially hostile, but that the two instances of co-workers wearing such images (seen by only some of the plaintiffs) also flunks the "objectively hostile" standard.

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