An Aggressive Offense Is Not Always the Best Defense

That was the lesson for a meteorologist who argued that his termination for engaging in sexual harassment was actually race discrimination. The U.S. Court of Appeals for the Eleventh Circuit rejected his argument, finding that “no reasonable jury” could conclude that he was fired because of his race.

In Ossmann v. Meredith Corporation, female employees made multiple complaints over a period of years that the meteorologist had engaged in sexually harassing conduct, much of which he admitted, which finally led to the decision to terminate him. The HR director completed a termination request form, called an “EEO Analysis,” for approval by the corporate office. In addition to a detailed description of the misconduct at issue, this form required information about the wrongdoer’s race, sex and age, asked about discipline for other similar situations, and included a table for “Comparables” (i.e. other employees in similar positions) that also required their race, sex and age, among other things. There was also a statistical analysis of how the meteorologist’s termination would affect the demographics of the weather team and the news station generally. The meteorologist claimed that this form was evidence that he was terminated because of his (white) race.

The Eleventh Circuit disagreed. It found that the form was not direct evidence of discrimination, as it did not establish that his race was treated as a negative factor. Rather, it was simply a neutral factor that did not require racial balancing. Moreover, there was ample, undisputed evidence of his harassing conduct and, further, there was no evidence that employees of other races were treated more favorably for engaging in similar conduct. Consequently, the employee failed to show that he was terminated because of his race.

We note, however, that there was a dissent by one of the judges on the 11^th Circuit panel. This judge focused on the request for race information and the statistical study, finding that it was “reasonable and logical to infer that changing the race of the meteorologist would affect [the termination] decision.” Whether or not this is, in fact, a logical and reasonable inference, we note that the use of race at all on the termination request form obviously created issues in a situation that would otherwise have been quite straightforward – termination for continuing and admitted sexual harassment. Employers should keep in mind that disciplinary decisions should be consistent, regardless of race or any other protected characteristic.