The 11th Circuit Appeals Court affirmed the dismissal of a lawsuit by nurse Cynthia Diane Yelling after Yelling’s termination from St. Vincent’s Health System. Yelling had sued her former employer for racial discrimination and retaliation. Yelling alleged that St. Vincent’s had allowed a hostile workplace environment to exist when her co-workers made certain comments about then-President Barack Obama and his wife in 2015.

The Remarks were made by Yelling’s co-workers when President Obama visited a local college in Alabama. Yelling’s fellow nurses allegedly said Mrs. Obama “looks like a monkey” and that the President “needs to go back to Africa,” among other derogatory remarks. Yelling also alleges that the same co-workers referred to Black patients as “crack heads,” “welfare queens,” and “ghetto fabulous.” Other co-workers talked about being “Confederate flag flyers.” None of the racial remarks were directed at Yelling, none of the complaints were investigated, and no one was disciplined.

St. Vincent’s claims that Yelling was terminated for unrelated reasons. Yelling allegedly came to work “lethargic” and “unsteady,” though a drug test came back negative. Yelling got into a shouting match with a co-worker after Yelling accused her of stealing lab orders. In another instance, Yelling’s tracker showed she did not enter a patient’s room though her chart showed she had observed said patient.

The Appeal Court affirmed the lower court’s ruling that the “isolated epithets” by Yelling’s co-workers were not sufficiently severe and pervasive enough to constitute an abusive working environment. While some of the remarks about the Obamas were clearly racist, many of them were merely political or personal disagreements – i.e. disagreement with policy or party rather than race. Even if the remarks taken together were racist though, none of them were directed at Yelling even if she was sole black nurse at the hospital.

Likewise, there was no evidence of intentional racial discrimination or retaliatory intent to support a viable intentional racial discrimination or retaliation claim. Again, Yelling admits that she was never the target of the racial remarks and her termination could be considered part of Yelling’s own questionable conduct rather than a response to Yelling’s complaints about racial discrimination.

Workplace Harassment and Free Speech

A recent tension brought to the forefront of this case is the potential conflict between anti-discrimination laws and free Speech. There are cases where offensive speech may also be discriminatory. One of the judges on the 11th Circuit panel, Judge Brasher, believed that when the court is called to weigh free speech and anti-discrimination law, that speech should win out. “The closer objectionable speech comes to the heart of the First Amendment, the more reluctant a court should be to impose tort liability because of it.”

The 11th Circuit was correct that some of the speech Yelling took offense to was protected speech. Criticisms of President Obama as “stupid” or “worst president” were constitutionally protected speech, regardless of whether Yelling or others agreed with it. Criticism of Presidents Trump or Biden would be similarly protected speech that should not be subject of a lawsuit.

Presidents are public figures and will be subjected to public scrutiny. They don’t need private citizens to be offended on their behalf.

However, Yelling might have legitimate concerns about how her co-workers were calling their own patients names. Customers of a business can be racially harassed by an employees’ racial remarks. Notably, the nurses allegedly referred to their patients as “crack heads” or “welfare queens” which are not racial remarks. In fact, drug use is not a legally protected status under any anti-discrimination laws. It is a poor business practice, but not illegal.

However, if the nurses were referring to their patients as “monkeys” or claiming they need to go back to Africa, then such speech would not only be racially discriminatory, but would not constitute legally protected speech. Patients, unlike American presidents, are not public figures and any insults towards them would not be political speech, which is the most protected speech under the Constitution. Such remarks would likely fall into a category of speech that is exempted from constitutional protection, including obscenity, defamation or fighting words. While there may be a tension between the Civil Rights Act and free speech, such conflict would be rare. Employers cannot hide behind the First Amendment when their employees harass co-workers or customers nor should courts protect them from the consequences of persistent harassment.

Do I Need a Lawyer to File a Claim for a Hostile Work Environment?

An employment lawyer can assist you with a hostile work environment claim, including reporting the claim to the EEOC or local state agency. Your lawyer can also help you gather evidence and represent you in court if a lawsuit is necessary.

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