When did the Eleventh Circuit suddenly become one of the most progressive circuits in the country on employment discrimination? In the past several months, the court has issued several excellent decisions enforcing civil rights, and this latest - reversing summary judgment in a race harassment case - has the potential of helping many more such claimants by setting a reasonable bar for proving severity.
Jones v. UPS Group Freight, No. 11-10416 (11th Cir. June 11, 2012): This decision reverses summary judgment against a UPS Ground Freight driver, African American, who complained that his white co-workers brandished Confederate insignia, taunted him by leaving bananas at or near his truck, and confronted him when he complained.
Problems began in the first week of employment, when his trainer reportedly uttered "I know how to train you Indians." When Mr. Jones responded that he was not Indian, the trainer allegedly said "I don't care what race you are, I trained your kind before."
After his training, the alleged harassing events occurred primarily in an Alabama-based terminal that Jones occasionally was required to visit. When Jones was assigned a truck, he began to find pieces of banana left in the flat-bed or on the running board of the cab. He complained the company after the third such incident, and the manager of the terminal (Carter) reportedly was not helpful:
"Carter explained that UPSF policy prohibited discrimination based on race. Carter also indicated that he did not believe anyone working at the Trussville terminal was racist. He suggested that children might be throwing the bananas over the fence. Mr. Jones responded that he did not believe that the bananas could have been thrown over the fence by children because he always found them in the same places on his truck. Carter then recommended that Mr. Jones park his trailer in a different part of the lot and that 'if it comes up on there, then, we'll see.'"
A fourth banana incident occurred after this meeting.
At the same time, Jones reported the wearing of Confederate-flag insignia by co-workers. Word filtered back, apparently, leading to a tense exchange:
"[T]he guys came up to me and asked me about the -- why did I tell on them about the confederate flag and did I tell the manager that -- that they put the -- that they put the banana on it. And I was -- and I was kind of nervous because it was like at night. So you know, and it was like two of them. And one had like a metal like crowbar or something in his hand. So he was -- asked me and I was just like no, I didn't. Because, you know, it wasn't supposed to have been -- [Carter] wasn't supposed to tell them. So I was like no. But I was like but if you did do that, I was like, I think that's not funny. And he started laughing."
Feeling that his complaints were not being investigated properly, and threatened by the reaction of his co-workers, Jones soon resigned. He brought this claim (and others, abandoned) under Title VII and § 1981.
The Eleventh Circuit reverses summary judgment and holds as follows:
1. It excludes as further evidence of harassment a statement that Jones made, in an email, advising the company that he was subjected to many racist remarks, both on hearsay grounds and because it supposedly contradicted his deposition testimony.
2. The evidence of the bananas was admissible, as - despite the absence of a confessed racial purpose for littering Jones' truck - the cultural context of these incidents made their purpose clear enough to present to a jury:
"[A] discriminator may conjure up images of monkeys by using items associated with monkeys, such as their stereotypical food of choice, the banana. When a race claim is premised upon the presence of bananas, which requires us to infer that the person who placed the bananas was evoking a racial slur, we must, of course, be cognizant of the surrounding circumstances. People commonly eat and discard bananas, in the workplace and elsewhere, without any racial motivation . . . Unfortunately, some people do use bananas to communicate racial slurs."
3. The panel holds that the combination of above events could constitute severe or pervasive harassment:
"While at the Trussville terminal to speak to Carter, Mr. Jones witnessed three employees wearing Confederate shirts or hats, all on the same day; as one of our sister circuits has observed, 'it is not an irrational inference that one who displays the confederate flag may harbor racial bias against African-Americans." United States v. Blanding, 250 F.3d 858, 861 (4th Cir. 2001) (emphasis omitted). Moreover, a reasonable jury could also conclude that it was no coincidence that three employees happened to come to work wearing clothing bearing the Confederate flag on the same day and around the same time that the bananas began to appear on Mr. Jones's truck with greater frequency. Within a week of his meeting with Carter, Mr. Jones was confronted by two yardmen about that meeting; the yardmen approached Mr. Jones at night, and one of them held an object that could be perceived as a weapon. Notably, the yardmen were among those Mr. Jones had seen wearing Confederate-decorated attire. This could be perceived as 'physically threatening,' an important factor in our hostile work environment analysis. . . . Moreover, shortly after this encounter, Mr. Jones again found bananas on his truck. Incidents of harassment 'that continue despite the employee's . . . objections are indicative of a hostile work environment.'" [Citations omitted]