“If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn’t. And contrary wise, what is, it wouldn’t be.”
- The Mad Hatter, Alice’s Adventures in Wonderland (Lewis Carroll, 1865)
When I explain the disparate treatment theory in employment discrimination cases, I make the point that the analysis must look at the way people of different protected classifications are treated in “similar circumstances.” Key to this analysis: “what is a similar circumstance?”
I sometimes use the example of two employees of different races who fight at work. One is fired, but the other is not. What might be the non-discriminatory reason for that result? There are a few, but usually students come up with: (1) one started it; (2) one had been disciplined before but the other had not; or (3) one had a weapon and the other was just defending themself. All are valid non-discriminatory reasons for the result.
A recent decision from Kentucky on that subject, with just enough whiff of politicized overtones, is interesting enough (at least for me) to blog about. Halbauer v. DeJoy, 2023 U.S. Dist. LEXIS 115801 (W.D. Ky. July 6, 2023). Here, a white postal carrier alleged he was treated differently for wearing a MAGA hat from a Black co-worker who wore a Black Lives Matter hat. Yup.
Let’s set the stage here. It’s August 2019. Our plaintiff, James Halbauer, comes to work in Louisville wearing a “Make America Great Again” hat. If you are unfamiliar with what that phrase means, welcome back from having been on another planet for about the last decade. I was going to suggest maybe you just awoke from a long slumber like Rip Van Winkle, but then the word “woke” is in the sentence and, well, I’m not going to go there.
When a Black co-worker saw Halbauer with the MAGA hat, she repeatedly called him a racist and continued to yell at him. The shop steward told her to stop. Later, a supervisor told Halbauer that he’d be escorted off the premises if he wore the MAGA hat to work again.
But wait, Halbauer said, the same co-worker who yelled at me had worn a “Black Lives Matter” hat to work and was not treated this way! Indeed, she wasn’t told to take it off even after Halbauer reported it to a supervisor. (Same welcome back to earth to you if BLM is an unfamiliar term.) And, yes, these are adults we are talking about.
Halbauer sued the Postal Service. There were more allegations of his perception of “reverse” discrimination than just the acronym v. acronym battlelines, but let’s stick with that issue. Last week, the District Court for the Western District of Kentucky granted the USPS’s motion for summary judgment, dismissing Halbauer’s lawsuit.
This is where the “similarly situated” analysis comes into play. You see, at least with respect to the MAGA and BLM hats, the MAGA hat was campaign paraphernalia and wearing it was a violation of the Hatch Act. 5 U.S.C. § 7324(a).
The Hatch Act is a 1939 law that prevents civil-service employees in the executive branch (other than the president and vice president) from engaging in some types of political activities. According to the U.S. Office of Special Counsel: “The law’s purposes are to ensure that federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation.”
The co-worker’s BLM hat, on the other hand, was not campaign related; it bore the name of a social movement. The difference is significant. One action violated the law; the other expressed an opinion. The circumstances were not similar.
The take-away? If you have indeed just returned from another planet, you will soon become aware that we are now daily inundated with media and social media points of view – some thoughtful and some not – largely geared to stir emotions into a frenzy rather than to present suggestions on how we might work together to try to solve significant issues. I recognize that it is your choice if that’s the sort of rabbit hole you want to go down. But, for goodness’ sake, don’t make a federal case out of it.