Employee prevails on appeal against school board

• DOI: http://doi.org/10.1002/nba.30734
• Date: 01 March 2020
• Published date: 01 March 2020

NONPROFIT BUSINESS ADVISOR MARCH 2020

10 © 2020 Wiley Periodicals, Inc., A Wiley Company • All rights reserved

DOI: 10.1002/nba

Employment Law

Here’s a look at several recent notable lawsuits involving nonprots. Nonprots should regularly review

employment laws and their compliance efforts to avert similar issues.

Title VII

Employee prevails on appeal against

school board

The plaintiff was a Broward County School Board

auto mechanic of Puerto Rican heritage.

Beginning in 2013, his supervisor purportedly

made offensive comments every day about Puerto

Ricans. According to the plaintiff, he regularly said

things like “I’m around too many Puerto Ricans, I

better carry my gun” and “We need to lock our tool-

boxes because we’re hiring too many Puerto Ricans.”

In addition, the supervisor allegedly never called

the plaintiff by name, and instead called him “Puerto

Rican.”

According to co-workers, that supervisor used the

terms “spic” and “wetback” either specically about

the plaintiff or about Hispanic people in general.

According to co-workers, the plaintiff was only

present for some of the comments.

One co-worker accompanied the plaintiff on two

occasions when he complained to management that

the supervisor was making racist remarks.

According to the plaintiff, little was done to allevi-

ate the situation.

The alleged offensive conduct didn’t slack off until

the plaintiff led a discrimination charge with the

U.S. Equal Employment Opportunity Commission

in September 2014.

The plaintiff led a suit claiming a hostile work

environment in violation of Title VII, but the trial

judge granted a summary judgment in favor of the

school board.

On appeal, the court said a plaintiff claiming a

hostile work environment must show that the work-

place was permeated with discriminatory intimida-

tion and ridicule sufciently severe or pervasive to

alter the conditions of the victim’s employment. It

also said the offensive behavior must result in an

environment that a reasonable person would nd

hostile or abusive.

EMPLOYEE WINS ➔ The panel then ruled

that a reasonable jury could conclude that the

plaintiff’s workplace was objectively hostile. It

explained that the supervisor’s alleged offensive

conduct was (1) pervasive because it had occurred

almost daily for nearly two years and (2) severe be-

cause of the unambiguous ethnic slurs like “spic”

and “wetback.”

The court explained there wasn’t any magic

number of racial or ethnic insults that a plaintiff

was required to prove. But looking at the totality

of the circumstances, the panel decided the super-

visor had crossed the line by allegedly denigrating

Hispanics on a daily basis, belittling the plaintiff by

calling him “Puerto Rican” instead of his name and

implying that Puerto Ricans were untrustworthy

and lazy.

The court was also troubled by the fact that the

supervisor might have called the plaintiff “spic” be-

hind his back, because co-workers had made it clear

that he had referred to the plaintiff as “dumb spic”

and also a “knock-kneed spic.” Even after assum-

ing that those slurs weren’t uttered in the plaintiff’s

presence, the panel said there was enough evidence

for a reasonable jury to conclude that the plaintiff

was aware of the supervisor saying those things

behind his back.

The court reversed the trial judge’s ruling and sent

the case back for trial.

[Ortiz v. School Board of Broward County, Florida,

U.S. Court of Appeals for the 11th Circuit, No. 18-

15305, 07/11/2019].

Hostile work environment

Judge rules against employer in racial

harassment case

In 2011, the plaintiff became an Illinois Depart-

ment of Human Services Mental Health Tech I at a

center for the developmentally disabled.

After resigning in 2016, he led a suit that claimed

a hostile work environment in violation of Title VII.

The plaintiff alleged (1) co-workers often called

him a “racist,” a “rapist” and a “snitch”; (2) several

black co-workers called him “vanilla swole,” which

he took to mean a “large, muscular Caucasian”; (3)

a work training supervisor told the plaintiff he was

going to die; (4) some co-workers made derogatory

comments about parts of his anatomy; and (5) all the

program coordinator did was to tell the co-workers

to “leave the white boy alone.”