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No Discrimination When Racial Slur Part of Job

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By William Vogeler, Esq. on July 25, 2018 6:57 AM

A black police officer, a potential witness in a case, listened as a prosecutor started to read aloud racially-offensive letters that could be used for trial.

The lawyer stopped and asked if anyone in the trial preparation room was offended, prompting a black assistant attorney to leave but not the police officer. The prosecutor continued reading, repeating the word "Nigga" over and over again.

In Savage v. State of Maryland, the officer sued for racial discrimination because he had to listen to the offensive letters and he was not used as a witness. Let's read that again.

"Highly Powerful and Hurtful"

Savage, an officer with the Pocomoke City Police Department, filed two complaints objecting to Beau Oglesby's repeated reading of the racial slur. He said the N-word was "highly powerful and hurtful."

Over the next year, tensions grew between Savage and Oglesby, who had decided not to use Savage as a witness in other cases. He told the city manager that he didn't trust Savage and that he was "useless."

The city fired the police officer, and he sued for discrimination and retaliation under Title VII of the Civil Rights Act. On review, the U.S. Fourth Circuit Court of Appeals affirmed a ruling that the prosecutor was immune from liability.

The appeals court reversed, however, the trial court's ruling against the state. The plaintiff sued Maryland as his "employer" to get around sovereign immunity, the judges reasoned.

"No Reasonable Employee"

Among other things, the appellate panel observed, Savage brought the offensive letters to the meeting and gave them to the prosecutor to review. Granted, the words were offensive.

"But context matters," the judges said. In other words, it was part of the job.

Even if the prosecutor repeated the racial slurs, noted the Workplace Prof Blog, it was not actionable in context.

"That is because no reasonable employee could believe that exposure to the most odious racial epithets violates Title VII when it is part of the employee's job in preparing for trial to listen to potential witness statements being read by the state's attorney," the website said.

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