Can a Black worker discriminate against a Black colleague on the basis of race? Are racy photos in the company uniform posted on social media always a slam-dunk reason for termination?

At an employment law briefing held March 10 by the National Employment Law Institute, Elizabeth Minoofar and Madalyn Doucet, employment law attorneys at Paul Hastings, highlighted several judgments from the past few years employers ought to keep in mind when handling workplace complaints.

Same-race harassment can constitute actionable discrimination

In Smith v. P.A.M. Transport, two Black truck drivers brought claims of race discrimination, hostile work environment and retaliation after allegedly being subjected to worse working conditions than White co-workers and being called racist terms by supervisors.

A district court dismissed their claims, determining the terms were “not plainly racist” and that one of the supervisors himself was Black. But an appeals court reversed, finding that one particular term “has an extensive history as a racial slur against African Americans,” and that the supervisor, while Black, could still engage in racial bias against Black workers.

“What stuck out to me” about the decision, Minoofar said, was the court’s explanation that the racist nature of the terms used “was not obviated simply because one of the two supervisors at issue in this case was also African American.”

“There’s definitely a mix of case law on this,” she said, noting past cases in which the...

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