Wednesday, April 3, 2013

Let's Review the Tape: Did Fired Rutgers Coach Mike Rice Create a Hostile Work Environment?



Former Rutgers Basketball Coach Mike Rice
Rutgers Fires Basketball Coach Mike Rice

Today, Rutgers fired Men's Basketball Coach Mike Rice, after video of his abusive actions during team practice surfaced, and was widely criticized by New Jersey Governor Chris Christie.

Click Here to read the story from CNN.com and to view the video. 

Christie:  Throwing his Weight Around
The video shows Rice pushing players, throwing basketballs at them and and yelling homophobic slurs such as "You f**king fairy... you're a f**king fa**got."

You may wonder, "What if my boss did those things to me, would that be an illegal hostile work environment?"

Ok, the key to your question is the word "illegal."

Without question, Rice created a "hostile work environment."  However, I am reasonably confident that he did not create an ILLEGAL hostile work environment.

To understand what constitutes an illegal HWE, you must start at its genesis, Title VII, the Civil Rights Act of 1964.

Bullying OK
Here is the key where Title VII is concerned:  Title VII prohibits only negative employer actions undertaken because of the race, sex, age, national origin, religious beliefs or disability of the employee.  A HWE exists where an employer treats an employee badly BECAUSE the employer does not like the employee's race, age, national origin, etc.

Title VII does NOT prohibit bullying.

Now, let's analyze Rice's behavior through this prism.

Under Title VII, it is NOT Illegal to Bully Employees

Let's start with the pushing of players and the hurling of basketballs.   Such actions do not, in and of themselves, violate Title VII. Title VII does not prohibit hitting employees or throwing objects at them. While such behavior may be criminal, it does not violate Title VII.  That is that.

Now, Title VII would prohibit such actions if the employer is doing it because it dislikes the employee's age, sex, race, etc.  Here, however, that is clearly not the case.  I am sure that Coach Rice did not actually believe his players were gay; he did not push them and throw balls at them because he thought they were gay and hated gay people.  He just did it because he was a jerk.  Being a jerk is not illegal under Title VII.

Under Title VII, it is NOT Illegal to Call Employees Bad Names

Now, we look at the epithets and name calling.  Again, slurs invoking the sex, race, national origin, etc. of an employee may certainly constitute an illegal hostile work environment PROVIDED THAT the employer is saying those things because it dislikes the subject qualities of an employee.

So, while calling a 60 year-old employee "old man" may be unlawful, calling a 30 year-old the same is not.

Calling an employee who is known to be a in perfect health a cripple because he comes to work one day with a twisted ankle is not illegal.  Saying the same thing to a wheelchair-bound employee is another matter.

Here, calling the players gay slurs was not illegal because Rice did not say those things because he thought they were gay.

The New Same Sex Marriage Symbol
Oh, and one more bit of food for thought:  As currently configured, Title VII does not prohibit discrimination based-upon sexual orientation.  So, under existing federal law, it is not illegal to fire someone because he/she is gay.

NOTES

21 States (plus D.C.) prohibit discrimination based upon sexual orientation 

9 States allow gay marriage
   
38 States prohibit gay marriage 

Obviously, the anticipated Supreme Court decisions in the Proposition 8 case and Defense of Marriage Act case, expected within the next several months, will lend further clarity to certain gay rights issues.
             
 John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

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2 comments:

Michael G. said...

I am an employment attorney in CA and while I agree with most of what was written in this article, I maintain that it may be an overstatement to state that sexual orientation is not protected under Title VII. On April 20, 2012, in an EEOC ruling, it was held that an employer who discriminates against an employee or applicant on the basis of the person's gender identity is violating the prohibition on sex discrimination contained in Title VII of the Civil Rights Act of 1964. It is probably not a stretch to claim that sexual orientation is a form of gender expression or identity and therefore actionable. However, to the author's point, the coach would have to be on actual or constructive notice of the employee's sexual orientation for a claim to be actionable.

Employment Lawyers said...

Michael:

Thank you for your comment. You are correct regardin the EEOC's findings in . Here is a link to that Decision:
http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt
Let's hope that one of our three branches of Government takes action to make this decision the law of the land.

John A. Gallagher