Last week, the Paula Deen racial remarks saga reached a new low, when the District Court dismissed Lisa Jackson’s claims of a racially hostile work environment based in part on Ms. Deen’s controversial past use of the “n-word.” For those who did not follow the case when it dominated the pop culture zeitgeist earlier this summer, Ms. Jackson sued Paula Deen and her brother, Bubba Hiers, claiming that she was subjected to a racially and sexually hostile work environment at the restaurant owned by Ms. Deen and Mr. Hiers, Uncle Bubba’s Seafood and Oyster House.
According to Ms. Jackson, Ms. Deen and Mr. Hiers engaged in a pattern and practice of racially offensive actions that severely discriminated against African-Americans and women. Ms. Jackson alleged that Ms. Deen and Mr. Hiers perpetuated an early 20th century mentality in the workplace by repeatedly using the “n-word” when referring to African-Americans, and by engaging in archaic and insensitive behavior such as refusing to allow African-American employees to use the restaurant’s public entrance or restrooms. In fact, one extreme example of the atmosphere was when Ms. Deen had the gall to plan a themed party in which all of her African-American workers dressed as slaves, before recognizing that some might find this offensive.
In such a work environment, it is hard to recognize how a Judge might find that this work environment was not racially insensitive to the point worthy of legal action, except for one key fact that often went unreported: Ms. Jackson is not African-American; Ms. Jackson is white.
In a disappointing holding, the District Court held that because of Ms. Jackson’s race, she did not have standing to pursue claims of a racially hostile work environment, while allowing her gender claims to survive. In issuing its decision, the Court relied on the recent Supreme Court decision, Thompson v. N. Am. Stainless, LP, 131 S.Ct. 863 (2011), which created a new test for who has the right to sue in employment discrimination cases. The prior standard, established by the Supreme Court in Traficante v. Metro Life Ins. Co., 409 U.S. 205 (1972), was that interracial association was such a benefit to all members of society that the loss of such an association created standing for any member of any race to sue. The District Court claimed that the Supreme Court narrowed this standard in Thompsonwhen it created a new test that gave standing to those who were in those “zone of interest sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Citing this decision, the District Court stated that Ms. Jackson was not in the “zone of interest” envisioned by Title VII, and claimed that she was, at best, “an accidental victim of the alleged racial discrimination.” According to the Court, Ms. Jackson’s race prevented her from being offended by remarks and actions that were hostile to African-Americans. On these grounds, the Court dismissed Ms. Jackson’s racial discrimination claims.
The firm of Kalijarvi, Chuzi, Newman & Fitch, P.C., strongly disagrees with the District Court’s decision, believing it to be based on an overly narrow analysis of a highly complex issue. For one thing, it openly contradicts the longstanding precedent set in Rogers v. E.E.O.C., 454 F.2d 234 (5th Cir. 1971), which held that all employees, regardless of race, are entitled to work in a non-discriminatory work environment. Further, even though Ms. Jackson is white, she has family members who are biracial and partially African-American. One of the racially offensive remarks was actually directed at her own Sicilian father, when Mr. Hiers claimed that her father looked like an “n-word.” At the very least, Ms. Jackson has the right to be offended on behalf of the insult to her family, bringing her within the “zone of interest” envisioned by Thompson. More broadly speaking, as established in Traficante, the loss of ability to peacefully co-exist with members of other races was a benefit to Ms. Jackson. Even though the District Court claimed that this standard could not survive in light of Thompson, the Thompson court had the opportunity to specifically throw out the standard, and did not. In the Deen decision, the District Court took it upon itself to speak for the Supreme Court and threw out the Traficante standard. Had this standard been applied as it should have been, Ms. Jackson’s claims would have survived.
Further, the District Court’s error is made readily apparent when viewed in conjunction with the long line of existing sexually hostile work environment case law. In sexual hostile work environment cases, a plaintiff can bring a claim based on sexually offensive remarks made in the environment, regardless of the gender the remarks directed at. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998). This situation directly mirrors Ms. Jacksons’s claims. If a man can bring a hostile work environment claim based on another man or woman making uncomfortable sexual remarks directed at women around him, Ms. Jackson should be able to bring a hostile work environment claim based on racial remarks made about others races.
On a final note, the heavy irony in this decision should not go unmentioned. One of the more controversial remarks made by Ms. Deen in this matter was when she was asked in her deposition if she thinks jokes using the “n-word” are “mean.” In response, Ms. Deen passed up an obvious opportunity to attempt to rectify her own past wrongs, and simply stated “I can’t, myself, determine what offends another person.” But in reaching its decision as it did, the Court did determine what offended another person. By dismissing Ms. Jackson’s claims, the Court essentially decided for Ms. Jackson what could and could not offend her. One can only surmise if Ms. Deen now agrees.
The case is Jackson v. Deen, No. CV412-139 (D.C. S.D.Ga., Order, 8/12/2013).