Legal News

Newsman Fired Over 'N-word' Can Sue for Reverse Bias

By Matthew Heller, Editor

Striking a blow against ?political correctness run amok,? a Philadelphia judge has ruled that a former TV news anchor who is white can sue a Fox station for firing him after he used the word ?nigger? during a newsroom meeting.

Tom Burlington	Joyce Evans

Tom Burlington's reverse discrimination case is the first in which a court has addressed the social norm that it is acceptable for African-Americans to say ?nigger? but not whites. He asked, ?Does this mean we can finally say the word ?nigger??? while discussing a story about the NAACP in Philadelphia holding a symbolic burial for the word.

WTXF Fox 29 argued it had legitimate, nondiscriminatory reasons for terminating Burlington in July 2007. But U.S. District Court Judge R. Barclay Surrick last week denied its motion for summary dismissal, ruling that a jury should decide whether he was fired because of the ?discriminatory animus? of African-American coworkers, including co-anchor Joyce Evans.

?When viewed in its historical context, one can see how people in general, and African Americans in particular, might react differently when a white person uses the word than if an African American uses it,? he said. ?Nevertheless, we are unable to conclude that this is a justifiable reason for permitting the Station to draw race-based distinctions between employees.?

Title VII of the 1964 Civil Rights Act ?was enacted to counter social norms that supported widespread discrimination against African Americans,? Surrick noted in his opinion, and

To conclude that the Station may act in accordance with the social norm that it is permissible for African Americans to use the word but not whites would require a determination that this is a ?good? race-based social norm that justifies a departure from the text of Title VII.

Burlington has insisted he did not use "nigger" in its pejorative sense at a newsroom editorial meeting on June 23, 2007. ?Plaintiff expressed his opinion that using the [euphemistic] phrase 'the n-word' rather than the actual word 'nigger' ultimately gives the word itself more power,? he said in his complaint.

But shortly after the meeting, Evans confronted him, allegedly saying, ?Because you?re white you can never understand what it?s like to be called a nigger and [ ] you cannot use the word ?nigger.??

On June 29, Burlington was suspended after he used the word again at a meeting with management to describe what happened during the newsroom discussion. Although the station indicated July 9 he would be allowed to return to work, it fired him three days later.

In allowing the case to proceed to trial, Surrick quoted at length from a deposition in which station general manager Mike Renda was unable to explain why he did not discipline an African-American employee, John Jervay, for using the word ?nigger? three times in an e-mail Jervay sent to management describing Burlington's actions.

?A reasonable jury could conclude that Renda?s testimony demonstrates that Defendants were  unable to draw a principled, non-race-based distinction between Jervay?s use of the word in describing what happened at the newsroom editorial meeting and Plaintiff?s use of the word when he was asked [on June 29] to describe what had happened at the meeting,? the judge said.

He also concluded there were ?genuine issues of material fact regarding whether Plaintiff?s coworkers in general, and Joyce Evans in particular, exhibited discriminatory animus and influenced the decision to terminate Plaintiff.?

Two days before Burlington was fired, Surrick noted, Evans ?phoned [Fox head of human resources] Ameena Ali to express concerns about her on-air chemistry with Plaintiff if he returned to work and to inform Ali that 'people on the street? were offended by Plaintiff?s behavior.?

Even if the ultimate decisionmaker was not motivated by racial animus, an employer can be liable for a wrongful termination under Title VII ?if those exhibiting discriminatory animus influenced or participated in the decision to terminate.?

Surrick summed up as follows:

This case presents unique issues regarding an employer?s liability under Title VII for cultural assumptions about a word that is considered by many to be the most offensive in the English language. Plaintiff portrays himself as a victim of political correctness run amok, while Defendants portray themselves as employers who made the only choice they could in response to an employee who repeatedly uttered ?the most noxious racial epithet in the contemporary American lexicon,? resulting in problems in the workplace and significant adverse publicity. Whether Plaintiff was a victim of discrimination or his own poor judgment is for a jury to decide.

By Matthew Heller
On Point

Full post as published by On Point News on January 03, 2011 (boomark / email).