By Deborah Hopkins, February 10, 2021
Last summer, at the height of the Black Lives Matters protests, the U.S. Office of Special Counsel (OSC) issued guidance on whether Federal employees were permitted to display Black Lives Matter paraphernalia in the workplace. According to OSC, the phrase “Black Lives Matter” (BLM) has become a motto for protesters and organizations “seeking to raise awareness of, and respond to, issues associated with racism in the United States.” Because BLM is centered on issues, it is not considered political organization. Therefore, employees are not prohibited from wearing or displaying BLM merchandise in the workplace.
As with any movement, there are supporters and non-supporters of BLM. One of the catchphrases of opponents to BLM is “All Lives Matter.” Much has been written about how and why this phrase is offensive to Black individuals, even when the perpetrator claims to have non-racist intentions.
So let’s look at a hypothetical, coming to a workplace or Zoom meeting near you. Employee X comes to work wearing a BLM shirt. Employee Y, a co-worker, looks at the shirt and says to Employee X, “All Lives Matter.” Employee X contacts an EEO counselor and claims hostile work environment harassment based on race.
Which leads me to the obvious question: Can a statement such as “All Lives Matter” create a hostile work environment?
I know this is a divisive topic. I know I’m taking a risk even writing about it. There are a lot of strong feelings about BLM and ALM. But this stuff is happening, right now, maybe in your agency, and you need to be prepared to deal with it – the legal way.
Harassment can be a difficult subject to handle. When you find yourself faced with what appears to be a hot-button subject such as this, take a deep breath or two, and remember to always come back to the framework: 1) What are the elements of a hostile work environment, and 2) Is there agency liability?
In a hostile work environment case, the first step of the analysis is to identify the conduct that is unwelcome in the workplace. Unwelcome conduct might be words, jokes, name-calling, use of epithets or slurs, threats, email forwards, touching or physical assaults. Conduct is also broad enough to include objects or pictures worn or posted in the workplace.
The primary focus in these cases is on whether the conduct was unwelcome to the victim, not on what the speaker’s intent was – though malicious intent can go to severity.
The question: Could a coworker uttering the phrase “All Lives Matter,” or wearing a shirt or posting a sign in their office with that slogan on it, be considered unwelcome conduct?
Based on Protected EEO Category
The next element to consider is whether the conduct was based on a protected EEO category: race, color, national origin, religion, gender, disability, age, genetic information, or reprisal.
The question: Is the statement “All Lives Matter” related to an EEO category?
If so, which category or categories?
Severe or Pervasive
When determining whether the conduct creates a hostile, intimidating, or abusive work environment, the severity and/or pervasiveness of the conduct must be considered. Some of the items to think through include:
- Is the complainant offended by the conduct?
- Would a reasonable person be offended by the conduct?
- The frequency and duration of conduct
- The egregiousness of the conduct
- The vulnerability of the victim, considering factors such as age and mental capacity
- The makeup of workforce — is the victim the only employee in the EEO category?
- The social context
- Whether the conduct is physically threatening or humiliating
- Whether the conduct unreasonably interferes with an employee’s work performance
- Relative positions of perpetrator and victim
The question: Is one utterance of “All Lives Matter” from one co-worker to another, severe or pervasive enough to alter the terms, conditions, or privileges of employment?
Does this change if the person making the statement is a supervisor?
Note: While most EEO case law says that a one-time instance of offensive conduct does not generally rise to the level of a hostile work environment, there are a number of cases where once was enough. Here are a few to get you started: Lashawna C. v. Department of Labor, EEOC Appeal No. 0720160020 (Feb. 10, 2017); Frank v. USPS, 2013 EEOC Appeal No. 120110223 (Jan. 31, 2013).
The hypothetical above didn’t say anything about the agency’s response to the incident, so we don’t have enough information to discuss liability. That’s another article altogether. But I can tell you, these kinds of incidents have occurred and are likely to occur, and the agency has a responsibility to protect its employees from harassing conduct. If you see or hear anything like this, it’s critical to intervene immediately.
I don’t have a definitive answer about whether this one statement would create a hostile work environment. As of this morning, there isn’t an EEOC decision involving the term “All Lives Matter.” I have to think that’s because of timing. Perhaps those cases are making their way through the EEO process now because ALM wasn’t a thing until fairly recently. There are, however, a few cases where “Black Lives Matter” comes up as a search term. If you’re interested, here are a few citations: Emerson P. v. USDA, EEOC No. 2019001823 (Mar. 20, 2019); Sherman H. v. Reclamation, EEOC No. 2019002422 (May 7, 2019); Jaqueline L. v. DLA, EEOC No. 2019001449 (June 23, 2020).
If you’re free March 2-4, join FELTG for the virtual training class Conducting Effective Harassment Investigations, where we’ll give you lots more on this topic and more, in three half-day segments. Hopkins@FELTG.com