Much of the world responded in horror this year when, after the killing of George Floyd and the related protests, the noose in the workplace became a national story. But for employment lawyers, the noose wasn’t news. The noose has historically been used as a weapon of violence and a symbol of racial terror in America. In the modern workplace, the noose continues to be used as an instrument of racial discrimination and harassment.
THE NOOSE IS REAL
On June 9, Darrell “Bubba” Wallace, the only Black driver in the NASCAR Cup Series, called for the removal of the Confederate flag by NASCAR, and two days later, NASCAR banned the flag. On the same day of the ban, Wallace raced his car with the #BlackLivesMatter logo over the rear wheels. Later, on June 21, Wallace learned a noose was found in his garage stall, and he responded on Twitter:
“Today’s despicable act of racism and hatred leaves me incredibly saddened and serves as a painful reminder of how much further we have to go as a society and how persistent we must be in the fight against racism,”
While subsequent commentary debated whether the object was a noose, the events illustrate two points: Wallace and his supporters, including NASCAR, understood the gravity of the racist meaning of a noose targeted at a Black worker, and the noose continues to be used as a symbol of racial hostility in employment.
The law recognizes that nooses have been and remain a go-to symbol for racists to intimidate and harass Black employees. These incidents may impact large and small employers in a range of industries. Litigation concerning this issue hasn’t slowed over the years, even though courts have repeatedly recognized the historical and offensive nature of the noose. In Tademy v. Union Pac. Corp., a 10th Circuit decision, the court states:
“The noose in the workplace context is a symbol not just of racial discrimination or of disapproval, but terror. . .. The noose in this context is intended to arouse fear. Indeed, the noose is among the most repugnant of all racist symbols, because it is itself an instrument of violence.
. . . “The noose is deeply a part of this country’s collective consciousness and history, any further explanation of how one could infer a racial motive appears quite unnecessary.” (614 F.3d 1132, 1142 (10th Cir. 2008) [internal citations and quotations omitted]). A claim for a hostile work environment based on race is the most frequent claim asserted to challenge the presence of racially offensive actions. This claim requires the claimant to prove that because of the harassment’s severity or pervasiveness, the conduct altered a term, condition, or privilege of the plaintiff’s employment and created an abusive working environment. A single workplace incident, if sufficiently severe or pervasive, can suffice to assert a viable hostile work environment claim.
Workplace conduct involving the noose continues to exist, and this conduct is the subject of continuing federal litigation. Within the past few years, the Equal Employment Opportunity Commission has resolved and initiated multiple lawsuits involving a noose.
One example is EEOC v. Driven Fence, Inc., resolved in February, in which the commission alleged that the charging party, a Black employee, discovered a noose hanging in the warehouse. Two coworkers pulled the employee toward the noose, telling him to put his head in it. The manager saw the noose, laughed, and did not report the noose, despite company policies requiring him to report the incident. (EEOC v. Driven Fence, Inc., No. 17-c- 6817 [N.D. Ill. (ECF # 72, 2/20/20)]).
In June, the EEOC filed a lawsuit against CCC Group, including allegations that a white foreman asked the Black employee if he wanted to go trick-or-treating, stating: “You don’t even have to dress up. I will dress in white and put a noose around your neck and we’ll walk down the street together” (EEOC v. CCC Group, Inc., No. 1:20-cv-0610 [N.D.N.Y. (ECF # 1, 6/20/20)]).
The CCC Group lawsuit also alleges that a separate white foreman directed the Black employee to come to a specific area, and when the employee arrived, the supervisor dragged a noose on the ground in front of the employee. The supervisor and the other white employees laughed at the spectacle of the supervisor attempting to string up his Black subordinate with a rope tied into a noose.
Recently, egregious racial harassment claims have been asserted in federal litigation against prominent American companies and large employers, including General Motors and the Boeing Company.
In Huguely, et al., v. General Motors, LLC, an ongoing action, nine Black employees alleged that: (1) the employees were exposed to three nooses attached to the ceiling, and additional displays of a noose in separate locations on different days; (2) a white employee threw a rope that looked like a noose at a Black employee, and the employer determined that the activity was merely horseplay; and (3) a white supervisor announced, during a supposed team meeting about racial tolerance: “What’s the big deal about nooses, there was never a Black person who was lynched that didn’t deserve it,” and this supervisor was not disciplined.
THERE IS NO NEUTRAL
Racial discrimination and harassment in employment will not disappear anytime soon; however, the use of the noose in the workplace can be eliminated or severely diminished.
The role of the noose in racial harassment litigation will be determined based on countless factors, including the relevance of employer training, the development of case law under numerous, newly appointed judges to federal district and appellate courts, the outcome of the 2020 election, and subsequent legislation and leadership at key federal administrative agencies.
Despite the legal and political uncertainties, there should be no neutral stance when it comes to nooses in the workplace. Large organizations like Home Depot are changing the way they sell ropes to prevent this specific hate symbol from showing up in their store. Employers and employees can do the same and enforce broad, no-tolerance policies confirming there is no neutral when it comes to nooses in the workplace.
— Steven Murray is the owner of Murray Law LLC, a Denver employment law practice, that focuses on providing dedicated and effective legal services to clients in private and public-sector employment law, civil rights in the workplace, trial practice, and litigation.