Thursday, October 22, 2015

It’s Not The Confederate Flag That’s The Problem: Lying to Federal Investigators

The Department of Justice announced on Monday that Susan R. Thompson of Jacksonville, Florida, has been indicted on two counts of lying to Federal Protective Service investigators about a workplace incident involving the Confederate battle flag. According to the indictment, Thompson, while working for the Army Corps of Engineers, placed a printed picture of a Confederate flag on the desk of her African-American coworker. Afterwards she lied about having done so to Federal Protective Services investigators.

The indictment was brought under 18 U.S.C. § 1001, which makes it a crime to “knowingly and willfully . . . make[] any materially false, fictitious, or fraudulent statement or representation” in a matter within the jurisdiction of the federal government. To establish a violation of 18 U.S.C. § 1001 prosecutors must show that the defendant made a statement that is: (1) false, (2) material, (3) knowingly and willfully made, and (4) about a matter within the jurisdiction of a federal department or agency. United States v. Turner, 551 F.3d 657, 662 (7th Cir. 2008). The penalty for each offense is a fine or imprisonment of not more than 5 years.

Notably, the indictment does not rely on the act of having placed the picture of the Confederate flag on a Black co-worker’s desk, but only on the federal employee’s failure to admit having done so. It is unlikely, in fact, that the picture of a Confederate flag would be judged in itself sufficiently severe to constitute actionable harassment under Title VII’s provisions protecting against a hostile work environment. The Supreme Court has said that to establish a claim of a hostile work environment, an employee must prove that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). In a similar case, the Department of Transportation was able to argue successfully that a picture containing the images of a Ku Klux Klansman and the Confederate flag, provided to an African American employee through his agency mailbox, even when coupled with an incident of a co-worker’s placing of a white cloth on his head like a Ku Klux Klansman, was insufficient to create a hostile work environment under Title VII. Kariem J. Davenport v. Dep’t of Transportation, EEOC Appeal No. 01A4849 (Apr. 28, 2005). The Eleventh Circuit upheld an Alabama decision that found that images of the Confederate flag on co-workers’ clothing, even when coupled with racist grafitti in the workplace, did not create an objectively harassing environment as required under Title VII. Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1256 (11th Cir. 2014); see Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 822 (4th Cir. 2004) (“It is unclear whether a single confederate flag – or set of decals – displayed in the workplace would support a Title VII claim.”) (extensive review of the history of the Confederate battle flag, id. at 823-26 and notes 5-7.).

An employer may be vicariously liable for workplace harassment, but may defend against certain types of harassment claims (those not involving a tangible employment action, such as termination) under Title VII by taking steps to prevent and correct any harassing behavior. Burlington Industries, Inc. v. Ellerth, 524 US 742, 754-61 (1998), Faragher v. City of Boca Raton, 524 US 775, 786-89 (1998). In general, employers who investigate and act on the results of the investigation are shielded from liability. It is just such an investigation that seems to have led to Ms. Thompson’s indictment.

This blog was written by Mary Kuntz.

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