This is not a post about race relations in America. Instead, this post is focused on the following issue: What happens if an employer terminates an employee to avoid racial tension caused by that employee’s conduct?
That was one of the underlying issues in Burton v. Gwinnett County School Dist., No. 18-10904, 2018 WL 6259631 (11th Cir. Nov. 28, 2018). Lauri Burton was a Principal at B.B. Harris Elementary School in the Gwinnett County School District. She is white. She and two African-American Assistant Principals removed a disruptive African-American student to a conference room. The student then repeatedly slammed a chair against a wall, causing a small indentation. When Burton met with the student’s family, she lied and claimed that the student made a hole in the wall. After that meeting, Burton ordered one of the Assistant Principals to take a hammer and make a hole in the wall. She then e-mailed pictures to the student’s family.
When Burton’s actions were discovered, she was terminated from employment by the system’s Superintendent. After she was terminated, an Associate Superintendent told Burton: “This could look like you framed children. This is a little black boy. This is two black APs.” Additionally, the School District submitted a report to the Georgia Professional Standards Commission. In the course of making that report, the District’s Executive Director of Human Resources and Staffing made statements to an investigator indicating that concerns about race relations in the community were a factor.
Burton sued under Title VII of the Civil Rights Act of 1964 claiming that her race was a factor in termination of her employment. Her lawsuit was a “mixed motive” claim. Burton effectively acknowledged that her actions were improper but argued that race was also a factor in the termination decision. Without any discussion, the Eleventh Circuit appeared to assume that Burton might be able to succeed on a mixed motive theory — if she could prove that avoiding racial tension motivated her termination.
But, the court sidestepped the issue by finding that Burton provided no evidence regarding the Superintendent’s motives. The Superintendent was the decision-maker, and the Superintendent denied that race was a factor. Burton’s evidence consisted solely of statements made by non-decision-makers after the termination decision. Thus, the court found that she could not meet her burden of proving that race motivated her termination.
But, what if the Superintendent made the statements? What if an admitted reason for termination was to avoid the potential for racial tension in the community? Could Burton have succeeded in her race discrimination claim?
I did some quick, but by no means exhaustive, research and I could not find any other cases discussing termination of employees as part of an effort to avoid racial tension. Title VII expressly prohibits termination “because of” an employee’s race. See 42 U.S.C. § 2000e-2. And, in a mixed-motive case, the employee only must show that race was “a motivating factor” for the employer in making the employment decision. At least one Eleventh Circuit case holds that a employee can “succeed on a mixed-motive claim if she demonstrates that ‘discriminatory input,’ such as [race or gender] bias, factored into the board’s ‘decisional process.'” Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1241 (11th Cir. 2016)
In short, I think that an employee like Ms. Burton could at least make an argument that Title VII forbids termination where a motivating factor is avoiding racial tension. Under that argument, Ms. Burton would show that race factored into her employer’s decisional process. A counter-argument would stress that racial bias is the deciding factor — not merely the presence of race. While race relations in the workplace or the community were considered, the employer will argue that it was not biased against Ms. Burton because of the color of her skin. Instead, it acted to avoid discord.
I wouldn’t want to be the Judge deciding that case, and I wouldn’t want to be the employer being sued for such a claim. Therefore, my advice is to avoid even the suggestion that race plays any role factor whatsoever in an employment decision.