Dress up like the KKK and sue for race discrimination

Yes, you read that correctly. Three Boeing employees transformed their work uniform into makeshift KKK uniforms and lost their jobs. Then they filed suit for race discrimination because their African American coworker did not lose his. Yes, you read that correctly, too. This is the backdrop for Barker v. The Boeing Company, filed in Pennsylvania.

I couldn’t pass up the opportunity to discuss one of the most bizarre employment cases I’ve ever seen. The case involves federal law so there’s no different spin on the case under Texas law; but I thought I would present the case a little differently than other commentators. I divided the separate stories of the terminated employees in their race discrimination claim and the complaining coworker/employer’s interpretation of events. You can make a decision where you think the truth lies. Then I’ll explain how this crazy situation shook out in the court.

The plaintiff employees’ version of the events leading to their race discrimination claim

The three discharged employees were two Caucasian and one Native American (Barker, Boyd and David Smith). They worked in a paint shop with Kenta Smith, an African American painter. Barker and the others insist that Kenta Smith often used racial slurs to refer to his white coworkers; which resulted in racial banter in the workplace. There were prior incidents of racially motivated physical violence between various employees; although no complaints exist about these altercations.

One day, Kenta Smith convinces the three plaintiffs, while at work, to shape their paint hoods into KKK hoods with points. Kenta Smith then went around asking other white coworkers to join the “family picture” and gave the three plaintiffs wooden crosses made from duct tape and wood paint stirrers. Kenta Smith then took a picture. Everybody joked about the situation. Kenta Smith then took the picture to their supervisor and complained as retaliation after he had a falling out with David Smith. The company investigated superficially and terminated the three although Kenta Smith received no punishment. The plaintiffs asserted the company discriminated on the basis of race in terminating them and not punishing Kenta Smith.

Kenta Smith and the Employer’s version

Racial tension was not new to the workplace. There was a noose hanging in the paint shop and a stuffed toy monkey strangely shoved between a pipe and a beam. Kenta Smith saw the three plaintiffs in their makeshift KKK uniforms and snapped a picture before they could avoid him. He then complained to his supervisor of the KKK uniforms although he said he did not want to make a formal complaint. The supervisor then raised the complaint to HR who investigated the situation.

They talked to Kenta Smith and the three plaintiffs but did not interview other employees. Boeing found the noose and toy monkey. HR determined Kenta Smith was more credible and discharged the three plaintiffs. The plaintiffs grieved to their union and asserted that it was unfair that Kenta Smith had been involved but received no punishment. The termination survived.

Before we move on, you should see the picture. Does it look like they are posing or caught off guard by the sudden photography? Click here.

The Race Discrimination Lawsuit

The three plaintiffs filed suit under section 1981 of the 1866 Civil Rights Act, which prohibits discrimination in contracts (including employment) on the basis of race. The lawsuit required the plaintiffs to prove that the employer’s termination was motivated by a discriminatory animus against white people. In depositions and the union grievance hearing, the employees asserted the termination was appropriate; but that Kenta Smith received more favorable treatment on the basis of race. This type of claim would be a mixed-motive claim, which argues the employer acted with both a legitimate and an unlawful discriminatory motive.

Because the plaintiffs failed to plead the mixed-motive claim, they had to prove the employer acted only on a discriminatory animus against white people. (Even if the plaintiffs had properly pleaded this alternative theory they still would have lost due to their inability to prove a discriminatory motive as explained below.)

The court made quick work of dismissing the plaintiffs’ claim. The court rejected the plaintiffs’ argument that there was a difference in treatment of similarly situated employees. The plaintiffs had dressed up in uniforms that carry a specific racial meaning. Kenta Smith did not. Kenta Smith complained of racial harassment. The plaintiffs were the object of the complaint. They were not similar except for sharing the same job. Even if the plaintiffs had it right, they still failed to prove Boeing acted with a discriminatory intent.

The court held that no reasonable jury could believe that the decision to discharge the plaintiffs was not based on their voluntary decision to pose for a picture in makeshift KKK uniforms or that the decision was merely a cover for a hatred of white people. Given the history of the KKK, Boeing could hardly suffer blame for discharging the plaintiffs for their conduct. The evidence did not prove a desire to treat white employees less favorably than the black employee motivated the employer.

Wrapping Up

If you believe the plaintiffs over Smith, or that truth lies in the middle, the plaintiffs still fail because their conduct violated the anti-harassment policy. Moreover, the KKK has such a particular meaning of hate and racism in the country that a lack of tolerance for that kind of symbolism will never make for a sympathetic plaintiff or a strong argument of discrimination against the person in the pointy hood. Employees: never dress like the KKK at work. Hitler is off limits, too.

You can read the court’s decision here.

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