Friday, October 31, 2014

White anchor's "how come they can say it" argument still going . . . .

Burlington v. News Corp. is a great case for highlighting "reverse discrimination" claims. A white news anchor used the n-word in a meeting and got fired. Sounds reasonable, right? The problem is that he claims black employees used the same word and were not terminated. Suddenly, he has something that sounds like a discrimination lawsuit.

The Eastern District of Pennsylvania denied full summary judgment in this case back in 2010 - so, I assumed it was over by now. I was wrong. The Court just issued another opinion last week. Short version: Plaintiff can go to trial on a Cat's Paw theory of discrimination.

What was the hold-up? I guess they were waiting for the Supreme Court to issue its opinion in Staub v. Proctor Hospital, explaining Cat's Paw discrimination (which is generally when a non-decisionmaker proximately causes an adverse employment action and does so with discriminatory animus). Although even that was more than three years ago.

In any event, another reminder to employers that white men are protected by discrimination statutes too. Do I think this guy's "how come they can say it" (my name for his theory, not his) will be successful at trial? I'd be surprised. But I guess we'll see.