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Nasir and Matt discuss how racism led to employees getting fired and another instance where a judge overturned a decision to terminate a racist employee.

Full Podcast Transcript

NASIR: Okay. Welcome to our podcast where we cover business in the news and add our legal twist to that business news. My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: And welcome to our program. I’m excited today because we get to talk about racism – my favorite topic.

MATT: Your favorite topic?

NASIR: Well, every podcast topic is my favorite topic.

MATT: Yeah.

NASIR: That’s how I justify that comment.

MATT: So, right off the bat, I’m a little curious about this story that we’re going to start with. I guess there was a manager at a Lowe’s in Virginia and they had an African American delivery truck driver and I guess assuming a white customer was not happy with the fact that the black driver was the one making the deliveries so that person requested that they have a white driver do the deliveries. My first question is – before we get too deep into it – like, how many deliveries from Lowe’s is someone getting where this is an actual issue? I don’t know if that’s going to be answered in this but that was my first question. And so, the customer makes the request in asking if someone else can be the delivery person that was white. When the manager of Lowe’s asked why and she said, “Because you’re black.”

NASIR: I think you’re misreading it.

MATT: Oh, that’s the manager.

NASIR: Yeah, that’s the manager, because actually what happened was some woman was I guess inside the store and I guess they knew beforehand because apparently she wouldn’t deal with any of the black customer service representatives or salesmen. And so, when she had a delivery, they already knew beforehand that she didn’t want any black delivery drivers for her particular delivery. For some reason, I picture an old, old woman but I suppose it could be young, too. That’s just I guess my image of it.

MATT: Now you’re running into age problems.

NASIR: Ageist?

MATT: Yeah.

NASIR: Is it better to be a racist or to be an ageist?

MATT: I think it’s worse to be racist because, if you’re ageist, the older people are going to die off sooner than the…

NASIR: Wrong answer. They’re both equally bad.


NASIR: It was a trick question.

MATT: That’s fine. I’m sticking with my answer.

NASIR: All kind of prejudice is wrong, Matt.

MATT: If you’re ageist and you’re against older people, eventually, you will become older presumably and it doesn’t work the other way where, if you’re against one race, you’re most likely not going to become the other race throughout time.

NASIR: You could be against younger people and you’re no longer going to be younger either so, even though you once were, it’s like you’ve transitioned out. It’s like, “Okay, I’m better than that now, I’m no longer five years old.”

MATT: Or maybe you’re just against anyone who’s not your age?

NASIR: Also very similar. Well, anyway, back to racism…

MATT: So, we had this incident with this customer and the manager – I mean, they say the customer is always right but I think this was one of those times where the manager has to step in and say something. I think it’s worth losing this one customer over this issue because the manager ended up going forward with it and, as a result, this manager – and I believe two others involved, right? – ended up getting terminated as a result.

NASIR: Yeah, and it’s weird. Of course, the conversation you were referencing is that conversation with the driver and one of the managers. It’s like, “Okay, well, why can’t I just go?” and this is according to the driver and he describes the manager as telling him that, “Oh, it’s because you’re black.” Of course, that’s probably the worst answer you can respond to that question. I kind of understand it because it’s like, you know, “This lady is being unreasonable or whatever. I just want to do my job. I don’t want to make a whole fuss. Instead of having Bob go, have Bill go,” who happens to not be black just to make it easier. But, at the same time, it’s like you just can’t do that in this day and age, right? You can’t put up with that stuff.

MATT: Yeah, it’s not going to fly in 2015, for sure. I mean, because the driver himself actually seemed in pretty decent spirits about it. He was like, “You know, it is what it is,” so maybe the manager thought, “Well, he seems like a pretty laidback guy, maybe he’ll be fine with it.” But, yeah, you can’t just say, “You can’t go on this delivery because you’re black.” I mean, you basically just took the problem from the customer standpoint, the bias, and you’re pushing it through as a manager. That’s probably why that manager ended up getting fired.

NASIR: Yeah, and according to Lowe’s, they reacted pretty quickly. As soon as the incident was brought to their attention, they took pretty quick action and terminated those particular managers which is probably the correct result – I mean, the correct decision, especially from a PR perspective, let alone a legal perspective – but that happens quite a bit and, any time you have someone that’s racist in the public, there’s always going to be some kind of backlash for them but, oftentimes, it goes back to the employer, especially if there’s some kind of, you know, even if it’s like a Facebook post or whatever, people see – “Oh, this person works for XYZ Company, XYZ Company hires racists, that means that XYZ Company is also racist” – and so then it becomes this whole thing, right?

MATT: It definitely can and I understand why Lowe’s approached it that way but, on the flip side, there’s also instances of someone who was fired for making racist comments and then they went through the system and an administrative law judge held that, you know, they had to be reinstated. I’m going to read a little bit. I know I’m not giving a lot of facts here but basically kind of the grounds were, you know, despite the fact that these statements that this person made were incredibly racist, they’re protected and as long as they aren’t accompanied with threats or acts of intimidation, then it’s fine for them to make that albeit, you know, they’re extremely racist.

NASIR: And this kind of ties into our conversation last week regarding, you know, what you can post in social media. In fact, there’s an entire site – it’s Tumblr blog – that’s basically and the site is literally about people can submit this content and it’s like an online vigilante – I don’t know what you want to call it – kind of moderation of individuals that they find that are racist to get them fired with them employer. I’ve read here and there that they have been responsible for certain publicity of certain, you know, high-profile kind of firings here and there. But the point is that now you’re seeing this pressure but, at the same time, is it illegal to fire somebody for those comments or not? You know, Matt mentioned this case. It had to do with, I think, a KFC employee, correct?

MATT: The comment was related to KFC. I don’t think it had…

NASIR: Well, anyway, last week, we talked about social media policies and how it relates – what’s protected speech and so forth – and it’s hard to believe but it’s possible that you can’t fire somebody for a racist comment. You know, this certain administrative ruling by the National Labor Board, it could go that way. But, generally – and I want to say this very, like, very cautiously – that hasn’t been the case before. There has been many cases that that has been permitted, especially in the concept of an “at-will” state. It really depends upon in what court you are, and I can say with very high level of confidence, if you’re in front of the National Labor Board in an administrative hearing, then you’re most likely going to lose whereas, if you’re in another court – possibly in a state court that is a little bit more employer-friendly – then you may be given more discretion. You know, there’s different types and levels of what a court would consider protected speech and a lot of courts don’t have the same kind of tolerance to that kind of behavior or they wouldn’t consider that kind of behavior under the umbrella or protected speech.

MATT: Yeah, and ALJs are going to be different than a full-on civil case and this was actually in Cooper Tire & Rubber Company with The Office and, your home state, Ohio.

NASIR: Ohio.

MATT: Findlay, Ohio.

NASIR: What do you think about these guys that are this racists-getting-fired guys?

MATT: It’s interesting. I was looking through it and I wasn’t familiar with it prior to preparing for the recording today. I mean, at least on their Tumblr, I haven’t looked too much into it. When I looked at their Twitter account, it seemed like all they were doing were re-tweeting anyone who wrote “I’m not racist, but…” and then wrote a racist comment. Like, people always do that – they qualify it. It’s like, “I’m not racist, but blah blah blah.” It’s like, “Well, that’s racist. I mean, it doesn’t matter if you put those couple of words in front.” In that case, all they’re doing is just, I guess, trying to bring awareness for the people that are making these comments and I imagine, once you get re-tweeted on there, you’re probably closing out your account or making it private.

NASIR: Yeah.

MATT: It reminds me, there’s one for St. Louis Cardinals which is a baseball team. They call themselves “the best fans in baseball” but there’s an account that basically will search for Cardinals-related commenst from their fans that are just atrocious. It can be extremely racist at times and it gets everything and just so many awful things. I think that accounts pretty humorous to the extent that it can be.

NASIR: I see. Well, this site has gone through some iterations, I guess. I guess, before they were a little bit more – how do I say it? Liberal on their policies on what they post and how they post it and what they say because, apparently, the person running it, she got a lot of legal threats of varying degrees for so-called exposing of private messages, of possible defamation and so forth.

MATT: Yeah.

NASIR: And, if you go to it now, it’s mostly screenshots. It’s mostly showing what other people have said. In that case, you’re just kind of republishing straight from the source. It’s hard to get a defamatory lawsuit if you’re just re-quoting it. They even specify that it should be public social media posts – not something that’s private as well.

MATT: Yeah, and that’s why I was making the point with the Twitter account. All it’s doing is re-tweeting – or I guess probably more accurately responding to – tweets that people had made. As long as anyone can see those, then it’s already out there, it’s already public, and so it’s just re-publicizing it. Yeah, I can see how posting private messages and things like that would get you into some problems. But, yeah, if you’re just repurposing what’s already out there, then that’s kind of the individual’s own faults for making those comments in the first place.

NASIR: I would check it out if you’re listening. There is some entertaining kind of stories here. It goes through in very minute detail every single thing but some of these actually result in a company response and a termination as well. Like, for example, this Regal Cinemas talks about one employee that their post doesn’t represent the company, et cetera, and that they disagree with it, or “the individual does not represent Regal Entertainment Group; her comments are offensive and she has engaged in behavior that violates everything which Regal stands for, et cetera.” It seems to be in response to what these guys are doing. I don’t know, I’m sure there’s positives and negatives to it, but interesting nonetheless.

MATT: Well, I was trying to figure out how they find these things but I’m guessing it’s probably people that are… because there are a lot of Facebook posts, for example. There’s someone who’s Facebook friends with them and…

NASIR: Yeah, you’re right, because Facebook is private – or somewhat private, I suppose – and anyone can submit content apparently and I think it goes through some moderation process of some sort. Well, that’s our racist episode. Matt feels racism is bad but ageism is not as bad – that’s his opinion; I disagree.

MATT: Now you’re being ism-ist or biasist. You’re favoring one bias over the other.

NASIR: One –ism over the other –ism.

MATT: Or I guess I am, I don’t know. I’m so confused.

NASIR: Yeah, you’re an ism-ist. All right, thanks for joining us, everyone.

MATT: Yeah, keep it sound and keep it smart.

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Legally Sound | Smart Business covers the top business stories with a legal twist. Hosted by attorneys Nasir N. Pasha and Matt Staub of Pasha Law, Legally Sound | Smart Business is a podcast geared towards small business owners.

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