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