What Do You Think: Was Termination After Fight Due to Racism?

Frank Ferreri

Fort Morgan, CO (WorkersCompensation.com) – As many parents will report, “But he started it” is rarely a way to escape punishment for being in a fight.

However, recently, the 10th U.S. Circuit Court of Appeals had to address whether a terminated employee’s defense that he was acting in self-defense after a coworker took the first swing showed that his employer subjected him to racism when it terminated him following a fight the employee was involved in on the job.

A foreperson for a cheese manufacturer got into a verbal disagreement with a coworker that escalated into a physical altercation in which the coworker pushed the foreperson, who then pushed the coworker back. In response, the coworker “knocked [the foreperson] unconscious, sending him to the hospital.”

Based on police reports of the incident, which indicated that the foreperson and coworker got into an argument and pushed each other, the manufacturer terminated the foreperson. When the foreperson learned of his termination, he said his actions were in self-defense, but the HR official he spoke said “that it didn’t matter.”

The foreperson sued, claiming that he was subjected to racial discrimination under Title VII based on his being Hispanic. In support of his argument, he presented the following examples of white employees who were not terminated after being involved in similar incidents:

  • A white employee got into a verbal dispute with a coworker and pushed the coworker. This employee did not receive discipline.
  • A white employee was accused of “rough housing” and inappropriate touching on two occasions, which included an accusation that he cupped a female employee’s rear end with his hand. This employee was issued a “last and final warning” but was permitted to keep his job.

In contrast, another Hispanic employee kicked a coworker in an incident and was terminated.

The court found in the manufacturer’s favor, prompting the foreperson to appeal.

Under Title VII, employers cannot discriminate in hiring, firing, salary structure, promotion, and other similar employment activities. Without direct evidence of discrimination, an employee must show that the employer’s state reason for taking action against him was pretext, or just a cover, for discrimination.

Did the manufacturer terminate the foreperson because he was Hispanic?

A. Yes. The manufacturer treated white employees more favorably, showing it discriminating against the foreperson.

B. No. The foreman was involved in a violent dispute, and that was a legitimate reason to terminate the foreperson.

If you picked B, you agreed with the court in Donez v. Leprino Foods Inc., No. 21-1212 (10th Cir. 02/18/22), which upheld the lower court’s ruling that a reasonable jury could find that the employer’s reason – the fight the foreperson was involved in – was the legitimate reason it terminated the foreperson.

The court explained that it didn’t matter whether the foreman was acting in self defense, since the manufacturer could nonetheless legitimately terminate him for being involved in the altercation at all.

“[The foreperson’s] exact role in the fight – willing participant, victim, aggressor – had no bearing on … the decision to fire him,” the court explained, highlighting that the termination occurred due to the foreperson’s being involved at all. Because engaging in a fight at work was a legitimate reason to terminate the foreperson, the foreperson did not establish that the manufacturer’s real reason for terminating him was racism.

This feature does not provide legal advice.