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Targeting Employee for Op-Ed Criticizing "Anti-Racism" Because She's White May Be Race Discrimination
but because here the employer's (and union's) actions were basically just an incident of public criticism, they didn't qualify as hostile environment harassment (and the employee wasn't fired or demoted).
From the decision Thursday by Judge Katherine Polk Failla (S.D.N.Y.) in Maron v. Legal Aid Society:
On July 23, 2020, Plaintiff Maud Maron, a career public defender at Defendant The Legal Aid Society ("LAS"), penned an op-ed in the New York Post entitled "Racial Obsessions Make it Impossible for NYC Schools to Treat Parents, Kids As People" (the "Op-Ed"). Speaking simultaneously in her capacities as a mother, public defender, elected public school council member, and then-candidate for New York City Council, Plaintiff recounted in the Op-Ed her experience at an anti-bias training run by the New York City Department of Education ("DOE").
She decried what she perceived as DOE's endorsement of the "chilling doctrine called anti-racism," which she asserted "insists on defining everyone by race, invites discrimination[,] and divides all thought and behavior along a racial axis." Responding to the Op-Ed, the Black Attorneys of Legal Aid ("BALA"), a caucus of Defendant Association of Legal Aid Attorneys ("ALAA," or the "Union," and together with LAS, "Defendants"), issued a public statement denouncing Plaintiff's "racist" views and characterizing her "as a classic example of what 21st century racism looks like." LAS followed with its own statement, which similarly rebuked Plaintiff's "racist perspective" and questioned the ability of any public defender to "effectively and fully" engage in public interest work if they do not embrace an anti-racist mandate….
The court considered Plaintiff's Title VII claim "that the public statements issued by LAS and BALA criticized Plaintiff and her ability to work as a public defender because of her race":
[T]he LAS Statement … expressly [ties] white attorneys'—specifically Plaintiff's—ability to do the work of a public defender to whether they accept the anti-racist credo and assume the attendant responsibilities. Poignantly, the LAS Statement imposes additional obligations on white public defenders "merely because" they are white:
To be anti-racist, to dismantle racism here at LAS, and in every organization, we must all recognize that white supremacy drives every policy and law, every opportunity and every advantage. For those of us who are white, it is a recognition that power and privilege has been granted merely because we are white. While you have dedicated your life to public interest, you cannot do this work effectively and fully unless and until you face that reality and own that you are part of the problem. You cannot stop there, you must actively work to dismantle the systems that lend you privilege and oppress BIPOC people. To push against the deep work needed to change and be threatened by the conversation, is the exact definition of white fragility…. White people have a duty to no longer be silent and a responsibility to confront these systems of oppression and to shun all forms of white supremacy in our society, in our workplaces, and within our hearts and minds.
Espousing a similar view, the BALA Statement doubted Plaintiff's "commitment to zealous representation of poor people of color," in part because she falls into the category of "white practitioners [who believe] that being public defenders preclude[s] them from being racist." BALA characterized Plaintiff as "one of many charlatans who took this job not out of a desire to make a difference, but for purposes of self-imaging," and made clear that public defenders "cannot oppose anti-racism and effectively represent Black and Brown people."
The context and content of Defendants' statements, including in particular LAS's stated expectation that white public defenders must shoulder additional responsibilities based solely on their race, convinces the Court that Plaintiff has adequately alleged that the statements were motivated, at least in part, by her race. That these statements also rebuke Plaintiff for the views she articulated in the Op-Ed does not strip the statements of their racial overtones….
Given Defendants' avowed disappointment that Plaintiff was a white person who failed to accept that her race and job title obligated her to adhere to their understanding of anti-racism—as expressed in explicit racial lines in their statements—the Court concludes that Plaintiff has adequately alleged that the BALA and LAS Statements were motivated, at least in part, by her race.
But the court concluded that the defendants' actions, even if based on plaintiff's race, weren't sufficient to create a hostile work environment for her (her objection here was just to the statements, not to any tangible employment action, such as firing or demotion):
To adequately plead a claim against an employer for hostile work environment under Title VII, a plaintiff must plausibly allege that "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." This test has both objective and subjective elements: "the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive." …
"As a general rule, incidents must be more than 'episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.'" "Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness," although "even a single act can meet the threshold if, by itself, it can and does work a transformation of the plaintiff's workplace." … "[E]xcessive criticism and rudeness do not constitute a hostile work environment." …
The court began by concluding that two other incidents that plaintiff pointed to didn't contribute to a hostile environment, and then rejected the claim that the BALA and LAS statements sufficed to create such an environment:
Plaintiff contends that LAS worked a transformation of her workplace when it issued a public statement calling into question her ability to perform her responsibilities as a public defender. Plaintiff posits that following the publication of the LAS Statement, her clients—a majority of whom are individuals of color—cannot be expected to trust that she will provide them adequate representation when her employer has publicly disavowed her ability to do so….
As critical of Plaintiff as the LAS Statement is, it uses no racial epithets, reveals no personally sensitive or private information, and levies no salacious allegations, any of which would enhance the statement's severity for the purpose of the Title VII analysis.
To be sure, the content of the statement makes clear that LAS harbors doubts concerning Plaintiff's ability to represent individuals of color as a public defender, and the Court has already determined that LAS's decision to release this statement was motivated in part by Plaintiff's race. While the Court views the statement as sufficiently implicating Plaintiff's race to bring it within the ambit of the federal civil rights laws, the statement is more than just a missive targeting Plaintiff. It stakes out LAS's stance on an issue of public importance; articulates the organization's mission vis-à-vis the constituencies it works to support; calls on the organization as a whole for failing to realize this mission; and commits the organization to doing more to address issues of systemic racism in the future. Even accepting Plaintiff's characterization that the statement constituted an unfair attack and mischaracterized her views, it does not meet the requisite standard for a Title VII hostile work environment claim….
[T]he fact that Plaintiff injected herself into the public discourse on a matter of public importance implicating race, and identified herself as a public defender in doing so, provides important context to LAS's decision to release the statement in the first place. In other words, the statements were not gratuitous, out-of-the blue, racialized attacks on Plaintiff, but rather represented LAS's attempt to distance itself from the position articulated in the Op-Ed….
The Court's conclusion that Plaintiff has not alleged a hostile work environment under Title VII is not intended to trivialize the harsh criticism that Plaintiff encountered during the 24-hour period in July 2020 when BALA and LAS released the statements at issue. But harsh criticism, even that Plaintiff alleges was unwarranted, does not itself make out a claim for hostile work environment. Here, the totality of the circumstances—namely, the fact that the statements were in response to a highly politicized Op-Ed authored by Plaintiff, that Plaintiff was on sabbatical campaigning for City Council at the time the statements were issued, and that LAS sought to stake out a broader position on a matter of public policy, beyond merely criticizing Plaintiff—counsel against finding that LAS's retweet of the BALA Statement and publication of its own statement rise to the level of severity or pervasiveness to state a hostile work environment under Title VII….
Plaintiff also claimed that LAS constructively discharged her, arguing that "[w]here an employer proclaims to the world that you are not capable of performing your job because you are a white woman who holds beliefs the employer opposes white employees from having, it is so intolerable that a reasonable person would feel compelled to resign." But the court rejected that. First,
Fatal to Plaintiff's constructive discharge claim is her failure to allege that she has actually resigned from LAS. Instead, by Plaintiff's own allegations, she remains on sabbatical with an open offer to return to LAS.
And beyond that,
Even if Plaintiff had alleged her resignation from LAS, her allegations would still fail to state a claim for constructive discharge. Constructive discharge is generally "regarded as an aggravated case of hostile work environment." "Here, because plaintiff has not stated a hostile work environment claim … a fortiori [she] has not stated a claim for constructive discharge."
Plaintiff's argument that a reasonable person might not want to return to a workplace following the release of a statement such as that released by LAS is well taken by the Court. But, letting a constructive discharge claim survive on these allegations runs the risk of diminishing the applicable standard, which is saved for cases in which "the abusive working environment became so intolerable that [plaintiff's] resignation qualified as a fitting response." As described above, the circumstances of this case convince the Court that Plaintiff was not exposed to a hostile environment, especially given the fact that she was on sabbatical doing work unconnected to her role as a public defender at the time the statements at issue were released. Therefore, the Court dismisses Plaintiff's claim for constructive discharge.
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Yea “anti-racism” usually means racism against whites
The decision makes the point. All woke is case.
Katherine Polk Failla, Harvard Law, Obama appointed, woke. Dismissed biased judge. She needs to resign or to be fired.
Eugene can make himself far more useful than now by posting all legal costs of each case.
What’s wrong with the decision? You don’t really want employers to have to pay money every time an employee gets his/her feelings hurt, right? The plaintiff didn’t plead adequate damage, that’s all.
That may feel illogical here because the employer basically said the employee can’t do the job, but the damages doctrine at work is the floodgate that stops thousands of even junkier claims against employers for hurt feelings.
Really, this shit is getting too crazy to even try to understand.
Now do a Black plaintiff.
Yeah, it’s hard to imagine that government employers saying “a Black attorney can’t do the job of a prosecutor if they believe in systemic racism” would be written off as not rising to the level of a hostile environment.
https://ifunny.co/picture/here-lies-conservatism-wow-imagine-if-the-situation-was-reversed-iBWmuYeP8
Two thoughts. First, plaintiff is the one who opened a debate in a newspaper while running for office, accusing the Legal Aid Society of racism and editorializing that the anti-racism policy undermined LAS’s ability to meet its mission.
Second, your example goes to beliefs rather than actions. I think if a prosecutor’s office said its employees, including Black employees, could not be effective prosecutors if they refused to treat Black and White (and other) defendants exactly the same regardless of beliefs about systemic racism, I think that would pass muster.
I generally agreed with the court’s reasoning here. But, as to the question: “Did statement(s) X and workplace situation Y rise to the level of constructive discharge or hostile work environment?” . . . that seems to me to be a classic example of a factual question that is usually left to a jury, isn’t it? The court here seems to be saying that even if this woman had, in fact, resigned (rather than go on sabbatical), the court was, on its own, decided that was not enough to even get to a jury.
That bit of the decision did throw me.
Lesson: go to work for a while and record or gather enough evidence for a hostile work environment claim.
Right. Otherwise she’s just a complaining karen, who can’t stand the heat and got out of the kitchen. I thin she might have had a good case if she waited until the heat rose a little.
She would have done better to sue for defamation for being called white.
A DNA test would probably show she has some trace elements of other races. Which under the one-drop rule would preclude her from being white. Therefore calling her white, with all the evilness implied by that status, would be defamatory.
“As critical of Plaintiff as the LAS Statement is, it uses no racial epithets”
Nowadays, “White “ is a racial epithet.
White is pejorative and meaningless.
Everyone from Sicily to Finland (except the Laps) is “White”, but there is no commonality except the label.
It appears that this attorney was on leave, reas a critical article about her, and simply decided to give up and not return. A hostile work environment is a fifficult claim to make when one isn’t working.
Much has been said about the need to permit people on the right to say things that make people on the left feel that uncomfortable, without being able to claim hostile environment the moment somebody says something critical that makes people feel upset.
But if this is so, people on the left also have to say things that make people on the right feel uncomfortable, without people on the right being able to immediately jump to the Civil Rights laws for protection.
What’s sauce for the goose has to be sauce for the gandar.
The editorial in respomse to the plaintiff’s own op-ess was on an issue of punlic concern. It necessarily singled her out because it was a rsppnse to her own missive. It may have made this attorney feel uncomfortable. It may have been wrong. It may have been complete balderdash. But the First Amendment protects it all the same. A critical counter op-ed on an issue of public concern simply does not create a hostile work envoronment.
https://nypost.com/2020/07/23/racial-obsessions-make-it-impossible-for-nyc-schools-to-treat-parents-kids-as-people/
You mean I have to listen to someone I disagree with? No way! It’s so much easier (and satisfying!) to scream “RACIST!!!” at them and ignore anything they say! This way I never lose an argument.
It’s pretty obviously discrimination. Unlike the invisible knapsack, microaggression white privilege stuff. That stuff is imaginary.
Different subject but same lockstep liberal mindset. It’s a religion. Watch Matt Walsh’s “What is a Woman”. All of the prominent know it all folks can’t answer the simple question.
Same here, what is racism? Judging by skin color.
“the abusive working environment became so intolerable that [plaintiff’s] resignation qualified as a fitting response.”
This could be used by Ilya Shapiro
Prediction – Reversed on appeal. This is a sufficiently pled hostile work environment claim to create a jury issue.
Black people have been all of those things too, yet still complain about alleged racism. To the extent there’s fragility, it’s bilateral heavily tilted on the black side, not white.
Hi, Queenie. All woke is case. The lawyer is conducting a jihad against white people. This is to plunder their assets.
Hi, Queenie. What is the race of Judge Failla?
Seriously? In a color blind and fully egalitarian society one would expect Presidents, Senators, and Supreme Court Justices to roughly mirror the racial and gender makeup of the country. Do the number of Presidents and Senators and Supreme Court Justices align, even very roughly, with the country’s demographics?
And the numbers aren’t even close. So “non-whites” have legit complaints.
People saying the things Queen almathea quotes are fragile whiners. And you are too, Someguy.
Seriously? In a color blind and fully egalitarian society one would expect Presidents, Senators, and Supreme Court Justices to roughly mirror the racial and gender makeup of the country. Do the number of Presidents and Senators and Supreme Court Justices align, even very roughly, with the country’s demographics?
Now do the NBA.
“And the numbers aren’t even close”
You’re right. Blacks are only 13% (approximately) of the US population and are about to be 22% of the Supreme Court. They have been 14% of the presidents in the last 40 years. They’re over represented.
Since you find counting by racial buckets to be so important you need to get a lot better at it. Or think about what you’re saying before you say it.
You want a “color blind” society to represent each color based on their distribution in the population?
You DO understand that you contradict yourself, right?
And as far as the Supreme Court goes, blacks are over-represented at the moment based on the population, so one of them has to go. Last in, first out, right?
Seriously? In a color blind and fully egalitarian society one would expect Presidents, Senators, and Supreme Court Justices to roughly mirror the racial and gender makeup of the country. Do the number of Presidents and Senators and Supreme Court Justices align, even very roughly, with the country’s demographics?
Even ignoring the inherent stupidity of this sort of single-variable argument, as bevis points out your very premise is bullshit to begin with.
“In a color blind and fully egalitarian society one would expect Presidents, Senators, and Supreme Court Justices to roughly mirror the racial and gender makeup of the country.”
[citation needed]
Oh and Queen is totally full of shit. I can’t see what they said but I’ve seen it before:
1. Queen says something disparaging about white people, intended to piss them off.
2. White person gets pissed off.
3. Queen: “See??? See??? White fragility!!!”
It’s circular logic bullshit. Intended to provoke then blaming the other guy for having been provoked. Pseudo intellectual garbage. And applying a stereotype to insult an entire group of people is textbook bigotry, although Queen is way too caught up in smelling their own farts to do any introspection.
Blacks get pissed off whenever some racist asshole says something bad about blacks. Understandably so. Is that Black Fragility? No, it isn’t. It’s people reacting to being insulted. Turns out black people and white people really are the same.
Why 40 years other than to make you numbers “work”?
Why did you exclude the most obvious positions of power where the numbers aren’t so small and are chosen by the people instead of appointed, such as the House of Representatives, or even the Senate?
Because you’re not honest, you’re playing games.
If someone is going to bring up examples of success stories that purportedly “prove” the true victims of racism in this country are white people, then it is legit to point out that the numbers don’t support the specious claim.
Ha ha was just thinking of that. The retort could be now do the NHL. But the moral of the story is things in life don’t necessarily follow quotas
The NBA is not our society. Our government is. Not that it’s news that our government does not reflect our populous in many many ways; just one more example.
The NBA is not our society. Our government is.
For some bizarre reason you seem to think that constitutes a meaningful argument. News flash: It doesn’t. Even ignoring the fact that NOVA Laywer’s assertion was ignorance-based nonsense, the point is that disparities in representation aren’t inherently proof of discrimination. One would think that even the average grade schooler would have understood that.
“Our government is.”
That explains a lot of your mistakes.
Unless you buy racial disparities in inherent ability, that demographic disparity sure is proof of some non value-add disparity.
Probably more systemic than individualized/intentional, and certainly not something that can be quickly or easily fixed.
I see you lied yet *again* about muting me.
Unless you buy racial disparities in inherent ability, that demographic disparity sure is proof of some non value-add disparity.
So the only possibility you can think of is discrimination by “the man”? You really are a joke.
See, you don’t really want to engage because you just make stupid, straw men assumptions. Someone else brought up that one President out of 46 has been Black as evidence that there very little racism or, at least, that most of it is anti-white instead of anti-Black. One presidential success story (a man with a Black father and White mother, primarily raised by his White mother) out of 46 is thin evidence that there is little racism. Then look at Congress, even the current numbers are skewed white, but the historical numbers are clearly ridiculous. bevisthedumb, up above, has to resort to the Supreme Court for “evidence” that Black Americans are supposedly overrepresented in positions of power. Which is too stupid to even engage.
When the numbers are as skewed as they are, particularly historically, it is dumb argument to point out one or two success stories as evidence that there isn’t discrimination. The comment to which I replied raised the issue of numbers, so a response regarding the true numbers is appropriate. Your assumption that I, am therefore, obsessed with equalizing numbers is one of those mental leaps that makes an ass out of u.
If you are arguing the converse, you need to provide the citation. If race doesn’t matter, then the expected distribution would most likely reflect the distribution in society. What you are implicitly arguing is that race does somehow matter, such that that assumption would be false. You’re going to have to back that up, or publicly exhibit your racism.