Discrimination against an employee based on his or her advocacy for or association with a co-worker of a different race is a violation of Title VII of the 1964 Civil Rights Act. This is because a white employee discriminated against because of his or her association with an African-American co-worker is discriminated on the basis of his or her race, because the discrimination stems from disapproval of the interracial association and therefore on the employee’s own race. The Sixth Circuit recently held in Barrett v. Whirlpool Corporation, No. 08-5307 (February 23, 2009), that the degree of association or advocacy was immaterial to the employee's claims.
A violation could be shown if an employee shows that (1) she was discriminated against at work, (2) because she was associated with members of a protected class, regardless of the degree of association. Similarly, the degree of advocacy is irrelevant to such a claim. While the court acknowledged that “as with association, severe or pervasive discriminatory harassment [is] more likely to correlate with more vigorous advocacy, it is unnecessary as long as a plaintiff offers proof that she was, in fact, discriminated against because she advocated for protected employees." Furthermore, the court added that in assessing the proof of whether an actionable hostile work environment existed “both types of impermissible harassment are considered in the aggregate to determine whether they were so severe or pervasive as to be actionable under the established hostile work environment standard.” However, the court cautioned that this does not include evidence of incidents of harassment directed at African-Americans but “only harassment that specifically targeted those who associated with and advocated for African-Americans would result in actionable hostile work environment claims for such individuals.”
The court ruled that a jury could find that one plaintiff, Nickens, was subjected to a severe or pervasive hostile work environment based on the following: she received a threat of physical violence for reporting racist language, she was subjected to a regular stream of offensive comments about her relationship with an African-American co-worker, and the same relationship was allegedly used as a reason to prevent her from applying for improved job positions. Furthermore, she had reported nearly all the relevant incidents to one of two supervisors, who failed to take corrective action, while both participating in harassment of her directly. The court took care in this case to specify that a white employee discriminated against because of his or her association with an African-American is discriminated on the basis of his race, because the facts support a finding that the discrimination was based on disapproval of the interracial association and therefore on the employee’s own race.
Robert L. Abell
www.RobertAbellLaw.com
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