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Friday, September 6, 2013

11th Circuit Stings ASU over Racial & Sexual Slurs

The 11th Circuit Court of Appeals opening comments in its September 3 opinion in the case of Jacqueline Weatherly, et al v. Alabama State University (ASU) are chilling: “The facts of this case should greatly concern every taxpaying citizen of the State of Alabama, especially because it involves a public institution largely funded with tax dollars paid by the people of Alabama.”

The appeal stemmed from complaints by three former employees of Alabama State University (“ASU”), who alleged they were subjected to a racially and sexual hostile work environments and retaliation at the hands of two ASU senior officials. Following a jury trial verdicts were rendered in favor of Jacqueline Weatherly ($309,453.06), Lydia Burkhalter ($376,509.65), and Cynthia Williams ($392,648.23). Dr. John Knight, executive vice president and chief operating officer as well as a state legislator, and LaVonette Bartley, associate executive director in the Office of the Special Assistant to the President, were the ASU senior officials.  Weatherly and Williams are African-American, and Burkhalter is biracial (part African-American, part Caucasian). Bartley and Knight are also African-American.

The 11th Circuit Panel apologized in footnote 1 “for the offensive and demeaning language contained in its opinion, but such language comes directly from the trial record.” Some of the offensive remarks were: “Bartley routinely made comments in Weatherly’s presence like, “I’m tired of n__ shit” and would mockingly refer to ASU’s mass transportation as the “n__ bus line.” “Bartley’s abusive conduct was also aimed at Burkhalter’s family, as she called Burkhalter’s seven-year-old son “a n__,” upsetting him so much that he crawled under his mother’s desk and curled up in the fetal position.”

“Bartley described Burkhalter’s breasts as “melons” and her derrière as “hams,” and Bartley commented on Burkhalter’s thong underwear and its accompanying panty lines in the presence of another employee…and that maybe she should make [Burkhalter] strip to see how many other tattoos [she] had and where.” Bartley also made comments to Williams such as, “talk to the n__ side of the hand because the white side does not want to hear it.”

Knight also made awkward and inappropriate requests, asking Burkhalter to dance for him the way she had danced at a party. On Burkhalter’s birthday, Knight called her after work and asked “what the “wildest thing” she could do for her birthday would be and told her to think of a “special thing” she wanted for her birthday and tell him.”

Knight threatened retribution for ASU employees who cooperated with the EEOC in their investigation of Weatherly’s EEOC Charge, warning that “no one was to speak with EEOC and that if they did, they would be dealt with. Terminated.” All three employees verbally and in writing reported the incidents to ASU Human Resources and requested transfers. An HR official responded that nothing could be done. All three were eventually fired.

Common Sense Counsel: I have learned in my years of conducting harassment investigations to not be shocked - but this opinion comes as close as any. Allowing comments, or conduct based on race or sex can create an intimidating, hostile or offensive work environment even among those of the same race and sex. Having a legally compliant anti-harassment policy, annual employee wide training, prompt and effective investigation of complaints by an outsider and taking proper remedial actions are keys to good risk reduction. A link to the full text of the 11th Circuit opinion is provided and is absolutely shocking.



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Tommy Eden is a partner working out of the Constangy, Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com