He used the “N”-word twice . . . and may just win his race discrimination claim too?!?

A black man who was fired after recording a rap song, claims that his race — not his use of the “N”-word twice in the video — motivated his employer to end his employment.

And, according to a federal judge in California, he may be right.

Here are the facts of the case:

• The defendant claimed that it fired the plaintiff for violating company policies, including the Policy Concerning Harassment, Sexual Harassment, Discrimination & Retaliation (“Harassment Policy”), and the On and Off Duty Conduct Policy (“Off Duty Policy”).
• Specifically, the defendant points to a rap song that the plaintiff wrote before his employment began, in which he used the “N”-word twice.
• While off-duty, the plaintiff filmed a music video based on the rap song. Plaintiff’s co-workers saw the video; although, the plaintiff did not circulate it.
• The defendant investigated, during which the plaintiff did not disclose that he recorded the video, stating only that the song pre-dated his employment.

Did the defendant misapply its own policy?

So, wait a minute! Even in California, employment is at-will. Can’t the defendant fire the plaintiff for the derogatory song and rap video?

Well, not so fast, said the court:

[T]here is a genuine question as to pretext, including whether Defendant actually believed Plaintiff violated its policies, including whether Plaintiff used the n-word in a derogatory way. Here, there is no dispute that Plaintiff did not use the n-word in the workplace, but that it was in a video that Plaintiff had recorded during off-hours. Plaintiff also did not circulate the video. Moreover, it appears Defendant did not know that Plaintiff recorded the video while employed by Defendant, but only knew Plaintiff recorded the video prior to his employment. Thus, it is unclear how the Off Duty Policy would have applied to his actions.

Ok, I think that makes sense. The defendant has a policy that it claims the plaintiff violated, only it cannot connect the dots. That could be evidence of pretext, i.e., a reason for terminating the employee that isn’t the real reason (e.g., discrimination). Plus, California has some wacky off-duty conduct laws anyway.

The Court second-guesses the employer’s response.

But, the Court then took a second step that troubles me. See if it bothers you too:

Likewise, there is also a question of discriminatory motive, as the fact Defendant terminated Plaintiff’s employment rather than pursuing other forms of discipline could suggest discriminatory motive. This is particularly the case when the investigator did not recommend termination, and the Harassment Policy does not mandate termination. Such questions should be decided by a jury.

Sure, if there was evidence that the employer applied the same policy differently to two employees in different protected classes, that’s one thing. Yet, the court does not cite any comparator evidence, only a deviation from the investigator’s recommended discipline. However, the court’s role really is not to second-guess an employer’s disciplinary decision. And I’m guessing that the policy is similar to yours in that it gives the employer freedom to apply (or not apply) progressive discipline.

The “N”-word may be ok sometimes?!?

According to Danielle Nichole Smith reporting here at Law360, the plaintiff “argued the use of the n-word in the song wasn’t derogatory and fell in line with a ‘cultural trope within the African American community.’ The worker was fired for ‘expressing a usage closely identified with a distinct subgroup of African Americans.'”

The plaintiff’s lawyer told Law360 that their “experts will testify that the use of this term is part of a linguistically recognized dialect: African-American English, or AAE,” about the “N”-word.

Employer takeaways.

Treat this case as an outlier with facts and circumstances that will hopefully not replicate themselves in your workplace. When employees use the N-word, you use the F-word, as in “You’re fired.” I’d rather take my chances that the fired employee turns around and sues for discrimination, versus doing nothing and having someone else who hears the “N”-word sue my company later for creating a hostile work environment.

That said, follow your policies and be consistent. California has some off-duty conduct laws that are different than most other states. Whatever your workplace policy may be, investigate the alleged infraction first and ensure that the employee actually violated the policy. Document the problem. Then, discipline the employee as you have others who have violated the same policy.

With proper investigation, documentation, and consistency, I’ll take my chances of having to defend that ‘discrimination’ lawsuit.