Dive Brief:

• A Facebook employee will get a second chance at his race bias suit after he showed that a supervisor involved in declining his promotion was fired for racist comments (Gary et al. v. Facebook, et al., No. 18-1994 (4th Cir., Aug. 26, 2020)).
• Robert Gary sued after he discovered that a White co-worker he had trained and who had less experience was promoted and had received a "considerably higher" raise than him. A district court ruled in Facebook’s favor, explaining that Gary’s White co-workers, including the man Gary trained, were too dissimilar to create an inference that Gary was denied a promotion because of race bias. The court also accepted Facebook’s assertion that Gary wasn’t promoted because he "lacked initiative and communication skills."
• On appeal, the 4th Circuit reversed, pointing out that the decision not to promote Gary involved a supervisor who was investigated and fired for using racial slurs when talking about Black employees — and that some of the remarks about race and work ethic resembled remarks made on Gary’s performance evaluations.

Dive Insight:

In some similar instances, employers have prevailed because such remarks were viewed as not having enough heft for a lawsuit to move forward. In one case earlier this year, the 5th Circuit held that "stray remarks" made to an African-American worker were "offensive" but did not show that she was fired based on her race. The employer was able to show that the worker was let go because of time-clock fraud. In another instance, the 2nd Circuit concluded that despite age-related "stray remarks" from executives, two former employees of Adloox, Inc., were fired for poor job performance, not age discrimination.

However, as this case and many others have shown, some remarks have been judged to hold enough significance to move a case forward. The 9th U.S. Circuit Court of Appeals ruled last year that comments by executives regarding a worker’s age were more than "stray remarks" and reversed summary judgment for the employer.

The EEOC has said that "petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality," but that offensive conduct can include slurs, epithets, etc.

According to the agency, "prevention is the best tool to eliminate harassment in the workplace" and employers can prevent and correct unlawful harassment by:

• Communicating to employees that unwelcome harassing conduct will not be tolerated.
• Establishing an effective complaint or grievance process.
• Providing anti-harassment training to managers and employees.
• Taking immediate and appropriate action when an employee complains.
• Creating an environment where "employees feel free to raise concerns and are confident that those concerns will be addressed."