In a recent decision, the Fifth Circuit Court of Appeals in New Orleans found that referring to an adult African-American male as “boy” twice, as “doofus”and as “dunce” did not amount to racial discrimination. See: Cavalier v. Clearlake Rehabilitation Hospital, Inc. Cavalier was a director of nursing at the hospital. The comments were made by another director. Michael Maslanka, a well-known employment lawyer who typically represents employers, points out that this finding stretches reality. In his blog, Work Matters, he appears to understand that to most people in Texas and the rest of the South, referring to an adult African-American male as “boy” is discrimination.
But, as Mr. Maslanka adds, Mr. Cavalier resigned. More importantly to the Court, Mr. Cavalier also declined an offer from Human Resources to resolve this conflict. Resigning almost always weakens an otherwise strong case. Declining assistance from HR is also unwise. Do those failures make these comments, somehow *not* discrimination? Not, probably not. But, in today’s climate, where some judges look for reasons to find against an employee, employees must proceed very carefully. Many judges have never held a menial job. They have never had to answer to a capricious or arbitrary employer. These judges may over-estimate the relevance of HR. The employee who ignores that reality proceeds at his or her peril.