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State Supreme Court says harassment – even without racial undertones – occurred with “fried chicken” comments
By Michael Bielawski
The Vermont State Supreme Court has upheld this week a decision to fire a state employee for saying the words “it smells like fried chicken” to an African American co-worker at a correctional facility.
The decision may set precedent that the results of words on an individual rather than the intentions of the speaker will determine whether speech is deemed inappropriate.
The final opinion reads, “The Vermont Labor Relations Board reversed the state’s determination of grievant, Chittenden Regional Correctional Facility (CRCF) employee Michael Miller, finding the state failed to prove allegations of racial discrimination and racial harassment in the applicable personnel policies.”
The state’s highest court disagrees with that assessment, thus overturning that appeal [of the state’s initial firing of Miller] and creating a convoluted three-part legal interpretation of the incident.
“The State appeals [the Board’s appeal of the state’s firing of Miller], claiming that the Board misinterpreted the meaning of racial discrimination and racial harassment in the applicable personnel policies. We affirm.”
The incident
The incident in question involved Miller, a white worker, who went into a break room at the Regional Correctional Facility in December 2020. A black coworker came in to get his food from the microwave and Miller asked if the food was his and “whether it was fried chicken”. The coworker said that yes it was his food but that it was seafood with vegetables.
Witnesses allege that Miller repeated that it smelled like fried chicken and the co-worker ignored him. The whole exchange lasted for about a half of a minute.
The black coworker then made a complaint to his union and the prison’s superintendent alleging that it was a “very racist” remark. After an investigation, it was determined that Miller had engaged in “discriminatory and unprofessional behavior” and was fired.
Miller then filed a grievance with the Vermont Labor Relations Board through his union, that being the Vermont State Employees’ Association. The Board subsequently reversed the firing suggesting there lacked evidence that there was intention for racial discrimination.
The Supreme Court’s take
Justice Nancy Waples and Chief Justice Paul Reiber dissented. They suggested that the collective bargaining agreement Miller was bound to established that his comments were not OK.
“The CBA incorporates several statewide and Department of Corrections-specific policies on discrimination and harassment. … ‘[The state] is contractually and legally bound to prohibit unlawful discrimination in the workplace on the basis of race’ and requires that all employees ‘take appropriate measures to ensure that discrimination does not occur.’”
She continued, “The State will be powerless to prevent racial discrimination and harassment claims through the workplace policies intended to do so, being left with only the option of litigating them in court.”
The opinion notes that Miller was interviewed by the facility and he denied that there was intent to be racially insensitive.
“During his initial interviews with CRCF, grievant did not recall how many times he asked about whether the food was fried chicken. Grievant asserted that his question was solely about the food and was not intended as a racial comment.”
The court also acknowledges that Miller’s statements may not have been intended as harmful. The notes at the bottom of page 3 state, “Although the Board found that grievant [Miller] lacked racist intentions, we do not doubt the negative impact of grievant’s words.”
The opinion further states, “The Board also found no evidence that grievant acted “based on or because of” coworker’s race, crediting grievant’s explanation that he was just questioning what the food was and not thinking of coworker’s race.”
The opinion says that before the state initially let Miller go they allowed him a chance to respond to the accusations and that “certain statements he made in the investigation were untruthful.” It does not elaborate on what Miller was allegedly untruthful about.
They continued that even without racial undertones, it nonetheless constitutes harassment.
“It did, however, conclude that grievant’s questioning was generally harassing. Thus, it found that grievant’s conduct, even if unmoored from any racial animus, violated Work Rule 6’s prohibition on ‘harassing’ behavior based on the dictionary definition of the term ‘harass,’ and that grievant failed to fulfill his duties as a supervisor and pursue the common good, in violation of Policy 5.6.”
The opinion notes that Miller has expressed desire to mend relations with the offended man, that he had been in his position for more than two decades with a solid work record.
It states that the Board “emphasized that grievant expressed a desire to remedy the situation, that no other employees had been terminated on similar grounds, and that grievant held an otherwise unblemished record at CRCF during his twenty-three years of employment. The Board, therefore, concluded that termination was not justified for this ‘isolated incident’ and reduced grievant’s penalty to a twenty-day suspension.”
It notes that they ultimately don’t disagree with the findings of the Board, rather they disagree with their actions.
“The State makes no claim that the Board’s findings of fact were clearly erroneous. Specifically, the State asserts that the Board acted outside of its discretion by analogizing the terms of the policies to definitions found in cases under Title VII, claiming this analogy is at odds with the policies’ text and “eviscerates” tae policies’ goal of preventing workplace discrimination.”
It continued, “In essence, the dissent disagrees with the Board’s methods of contract interpretation and therefore seeks to define the CBA’s terms in a manner it would find more appropriate under these circumstances. That is not deference; it is de novo interpretation.”
The author is a writer for the Vermont Daily Chronicle
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Categories: Court, Race and Division, State Government
I know this is nit-picking, but this happens all over the world, not just the US.
Cultural no-no’s and faux pas are taken seriously everywhere.
This is part of the cancel culture, a modern version of crucifying people on a main trader route, ala the Roman Empire. We take their money/job and publicly hang them on news sites today, the results are the same.
This is also the intentional break down of normal relations between people, co-workers, bosses, pretty much any relationship, part of the subversion of society, it is all intentional by some groups, Rules for Radicals gets into these tactics.
This is a wonderful video for people to learn from, certainly eye opening for me.
I cannot believe the foolishness going on here. Is fried chicken an exclusive food for one race? If I go into a restaurant and said it smells like fried chicken am I going to be persecuted…I mean prosecuted, if people of a certain race are present? What if I said it smells like pizza? Will Italians get angry?
1st of all, it’s impolite to bring fish to lunch at work. Was it fried fish?? Fried food is going to smell like fried food. There is nothing race specific about liking watermelons, fruit sodas, and fried chicken. Every race likes these things. “They” don’t get to own this. Just like gays don’t get to own the rainbow.
Society is sick with a brain infection, hyper-focused on race, all manufactured by the media and government lobbyists. I wonder if NPR has had a single day without mentioning “gay” or “race” in the last 10 years. It’s absolutely ridiculous. People are so dumb.
The next person who make a spud comment to an Irish dude is done. Done, I tell ya!!
And when I traveled abroad once a guy said “oh you’re American and not fat – ha ha”. If that happens again, I’m putting that guy the Julian Assange residency plan.
The article never states if he was making fried chicken or not…
I think it’s relevant.
What has fried chicken got to do with race?????
A leopard can’t change its spots.
And fried chicken can’t change its smell.
As “neurodiverse” I’ve been harassed, complained about, even assaulted. Often by people who knew better. Sane, mature adults, supposedly. A 30 second exchange over food is harassment? Hah!
Sniff sniff – “Hey, smells good! Is that tikka masala?”
“No, it’s saag paneer.”
Out you go; no pension for you.
Welcome to Vermont. Shut up.
Your pension comment makes sense.
Take a look at the website: Academic Kids – an online learning tool for teachers, parents, and/or children. The following appears under “African American” studies:
GREAT MIGRATION (African American) The Great Migration is a term used to describe the mass migration of African Americans from the Southern U.S. to the industrial centers of the northeast and Midwest between the 1910’s and the 1960’s.
The routes NORTH came to be known as the CHICKEN BONE EXPRESS because of the {specific} litter left by the migrants from the sides of the road as they moved.
Now, are people supposed to be made aware of this since this information is ALL OVER the net including this site – or is it a deep, dark secret that demands suppression of FREE SPEECH?? As another poster stated – The Irish once ate almost exclusively potatoes (potato famine due to blight which was a survival crop for a long period) and Italians, due to the vast & diverse climates they naturally enjoyed, utilized large quantities of tomatoes & olives. Fact. Reality. So what??
NO employer, no legislature, and no society can dictate decorum or intellect. The current US President has NONE and you can never demand it of an employee within a free society either.
Stop this idiocy.
How have we let any group under the sun hijack the English language to their particular cause?
At one time the language was a unifying force allowing entry into the society they chose to enter. It might not have been all of our first choice but it was here when our ancestors arrived. Embrace it, get used to it , move on with your life.
Now, somehow, it serves only to divide us into small, divisive, increasingly meaningless segments.
Sad for us all.
Compare and contrast this case with the ACLU case flipping off a cop and getting $75K. The nanny State and nanny Judiciary will punish and deem harrassment if someone’s feelings are hurt. However, if anyone listens to modern rap/hip hop or listens to how that community addresses each other in their music, the press, and social media…well, that’s okay. If the Left (on all media platforms) demoralizes the Right with racial slurs and character assasinations, that’s okay. Selective judicial punishment – Germany circa 1934.
All this for a mild comment that took half a minute total.
At the risk of being racist, I’m going to ask my Italian coworker if he likes pasta.
Go whole hog (whoops, hope I haven’t offended any Jews) and also ask if he’s lactose intolerant or watches The Godfather marathons on Cable non-stop. My guess is he’ll laugh his azz off as opposed to trying to sue you.
But then again, Italians were a group who immigrated legally & sought assimilation with immediacy & generally have a good sense of humor.
Even if you ask them about the mafia – they’ll just tell you “There’s no such thing”. Lol.
And when they tell you it’s a ham sandwich, will you then say “smells like pasta to me”???
Did we really waste taxpayer dollars arguing this BS!?!? and now what? If I walk into Kentucky Fried Chicken and say it smells like fried chicken, are my words now racist????? When is this ludicrousness going to end???.?