LABOR & EMPLOYMENT NEWSLETTER - Texas Judges Reprimanded after Slavery Talk and Buttocks Slap: Need for sensitivity training remains ever present, even among educated

The State Commission of Judicial Conduct issued warnings to two Texas judges after each engaged in behavior that was admittedly not offensive to the targets. Both received a public warning and were ordered to attend sensitivity training. These incidents are interesting and a helpful reminder to employers (who can be held accountable for the actions of their employees) that even educated professionals who do not appear to have any discriminatory intent can engage in inappropriate actions that cause harm. Sensitivity training can prevent significant embarrassment and cost if done proactively.

Discussion of Middle Passage Slave Trade inappropriate in the Courtroom
The Honorable Judge Brent Keis, Judge of the County Court at Law No. 1 in Fort Worth, Tarrant County, Texas inquired as to the correct pronunciation and origin of attorney Nuru Witherspoon’s name when he appeared in court with his clients, who had brought a motor vehicle personal injury lawsuit. Witherspoon advised the Judge that his first name was of African origin, but that he was from Georgia. The Judge attempted to engage Witherspoon in a conversation about the transportation of enslaved Africans to the Americas in what is referred to as the “Middle Passage.” He explained the theory that the Middle Passage experience had the effect of causing the death of Africans unable to cope with the hardships of the voyage, leaving only the stronger, more capable Africans surviving, with the resulting effect being the athletic superiority of many of today’s African-Americans. Witherspoon did not participate in the discussion.

The Judge encouraged the parties to settle due to his belief that the defendant’s offer to settle was fair given the lack of evidence of damage to the vehicle or the plaintiffs. The Judge advised the plaintiffs, by using a gambling analogy, that that they could proceed to trial if they wanted to “bet on black.” The plaintiffs settled.

Witherspoon did not take any immediate action but eventually filed a complaint against the Judge after describing the incident to his colleagues. In making a statement to the media, Witherspoon admitted that it would be a stretch to describe the Judge’s comments about slavery as racist. He commented that his clients were the ones offended by the Judge’s comments and were concerned they were not receiving fair treatment in the courtroom.

With language similar to the prohibitions found in anti-discrimination laws like Title VII, Canon 3B(6) of the Texas Code of Judicial Conduct states as follows: “A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status.” Although Judge Keis insisted that he did not intend his comments to be racially insensitive or offensive, the Commission determined that the remarks were inappropriate in the setting and could easily have been misinterpreted by anyone unfamiliar with the Judge. By injecting race and politics into the case, the Judge was found to have created a legitimate concern in the minds of litigants that the court was not impartial.

The Commission issued a public warning and ordered Judge Keis to attend an eight hour course covering the topics of racial sensitivity and diversity.

Buttocks slap because “ass was at hand level” not justified
The Honorable Hal Miner, Judge of the 47th Judicial District Court in Amarillo, Potter County, Texas attend a Christmas party hosted by a local law firm and attended by law enforcement officers, court, staff, probation department employees, attorneys, and other judges. At the party, the Judge approached a female attorney and slapped her on the buttocks. He appeared a second time and his hand made contact with her buttocks again. A witness advised that the judge joked about the attorney’s height, commenting to the effect that he had intended to slap her back, but her “ass was at hand level.”

Although the Judge was unable to recall the specifics, he acknowledged that the allegations are “basically true except that I did not think it would be offensive to her.” The female attorney, who did not file the complaint and was unhappy that a complaint was filed, stated that she was not offended by the conduct. The Commission found the behavior undignified and offensive, bringing public discredit upon the judiciary. The Judge received a public warning and was ordered to complete eight hours of sensitivity training.

Sensitivity Training provides helpful reminders about how others think and feel
The old saying about an ounce of prevention being worth a pound of cure comes to mind. Although late-night comedians love to tease about sensitivity training, the reality is that many people need more and better information about how certain topics are offensive to others in certain circumstances. In fact, often the most well-intentioned people make the most careless comments. Just because the speaker did not intent the comment to be offensive, and even when the person at whom the comment is directed is not offended, harm can result. Off color jokes or comments can be introduced as evidence and can cause public embarrassment. Take whatever steps necessary to prevent this type of behavior in your organization.