‘Hostile’ decision

AFEW DAYS AFTER CBS Radio fired Don Imus for referring to black female basketball players at Rutgers as “nappy-headed hos,” the U.S. Supreme Court winked at an even uglier racial slur. The justices on Monday declined to review a lower-court decision against a black IBM contract worker who was fired after complaining that a co-worker had described two African American murder suspects as “black monkeys.”

In October 2002, Robert L. Jordan was in a room at an IBM office in Maryland watching a news report about the arrest of two suspected snipers, both black, who had terrorized the Washington area. A co-worker in the room allegedly declared that “they should put those two black monkeys in a cage with a bunch of black apes and let the apes [sexually assault] them.”

Jordan complained to his superiors and, in his version of events, was repaid for his whistle-blowing by being verbally harassed, given a heavier workload and eventually fired. Yet two lower courts refused to allow Jordan’s complaint to go to trial because the “isolated racial slur” did not signify a “hostile workplace environment.”

Contrary to popular belief, the Supreme Court does not decide to hear cases based on righting wrongs. But in passing up Jordan’s case, the justices did more than close the courthouse door to an individual with a compelling story. They placed a cloud of uncertainty over the scope of the Civil Rights Act while weakening one of their own precedents.

In sustaining a decision against Jordan by the U.S. 4th Circuit Court of Appeals, the justices have created what a dissenting judge on that court called a “Catch-22 situation.” Under a 1998 Supreme Court ruling, workers are encouraged to report sexual or racial harassment before it makes the workplace hostile. But, according to Jordan, that’s what cost him his job. Because he was fired before a “hostile” case could be made, it was impossible for him to claim retaliation.

The Equal Employment Opportunity Commission, the federal agency that enforces anti-discrimination laws, supported Jordan, arguing that the anti-retaliation provisions of the Civil Rights Act gave him legal cover to oppose “a hostile action by taking reasonable action to prevent it.” That would have been a sensible interpretation.

The point is not to guarantee that Jordan or any other complainant would prevail; courts would have to assess each case. But it should be possible under the law to argue that retaliation for a single complaint indicates a hostile environment. Congress should step in and expand on the court’s cramped view of the Civil Rights Act and do away with the Catch-22 that denied Jordan his day in court.