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The non-minority fall guy


Can a non-minority witness to racial discrimination seek legal protection against retaliation under 42 U.S.C. § 1981 - a federal law protecting the rights of citizens to “make and enforce contracts” to the same extent “as is enjoyed by white citizens?”  Yes, according to a recent decision by the U.S. Court of Appeals for the Eighth Circuit.


By Chase Fisher

At the heart of the case was a supervisor with a habit of making inappropriate and offensive remarks about black employees at the employer’s warehouse.  Two white coworkers complained to the company about the supervisor’s comments on three separate occasions.  Of the three complaints, the last complaint was to the company’s human resources director.  To support the last complaint, one of the employees provided dates, descriptions and witnesses to six separate instances of the supervisor making offensive statements.  One of the witnesses listed was the employee who filed this lawsuit.

The company’s HR director, in turn, provided her findings to two managers.  Ironically, those two managers received the two earlier complaints and failed to take any action.  The HR director expressed concern as to whether the supervisor should continue in a managerial role, but the two managers, however, chose to place the supervisor in diversity training and took no other disciplinary measures.  Around the same time, the two coworkers were terminated.  Eventually, the employee who was listed as a witness in the third complaint was also terminated.  The court’s record indicated prior to the firings, the supervisor stated several of the “troublemakers” were being fired.  Subsequently, the witness employee filed this lawsuit against the employer alleging retaliation under § 1981.

Vindicating the rights of racial minorities
Generally, § 1981 is intended to protect racial minorities.  However, its protections may be extended to non-minorities who have been discriminated or retaliated against for attempting to “vindicate the rights of minorities protected by § 1981.”  The rationale for extending such protection to non-minorities is the discriminating behavior may otherwise not be challenged by anyone, which may only encourage such discrimination to continue.

Here, the court found the witness employee qualified for protection under § 1981 because of several factors.  Such factors included the supervisor’s “troublemaker” comments prior to the two complaining coworkers and the people they listed as witnesses being fired, along with the fact the managers who failed to truly discipline the supervisor were the same biased managers who defended the supervisor and failed to investigate the complaints, among other facts.  Further, the court found witnesses who substantiate a complaint of a civil rights violation in opposition to the violation have acted to ‘vindicate the rights’ of minorities.  Therefore, witnesses, such as the employee in this case, should receive protection under § 1981.

While employers are often aware of Title VII legal protections, it is easy to overlook less obvious protections, such as the § 1981 protections extended to the white, non-minority witness to the complaints in this case.  As such, this case should serve as a reminder training is the key to preventing such mistakes by management, as discrimination can exist in many forms.


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