A supervisor made off-color remarks to an African-American employee who was later terminated. The supervisor who made the comments was not involved in the decision to terminate the employee, but could the employer still be held liable for race discrimination?

What happened. Myron Canady worked for Wal-Mart in its Springfield, Missouri, store in 2001 for about 6 months. His immediate supervisor was Paul Smith, who, soon after meeting Canady, referred to himself as a "slave driver" in terms of his reputation as a manager. Canady complained to Smith's supervisor, Marlan Kirch, about the comment, and Smith later apologized to Canady. On another occasion, Smith, apparently mimicking the actors in the film "Rush Hour," asked Canady, "What's up, my nigga?" Canady again complained to Kirch, and Smith again apologized.

On December 17, Canady was eating an orange in the food preparation area, a place where Wal-Mart policy prohibits eating. When a manager told Canady to stop, Canady began "arguing loudly" with him. Kirch was called to resolve the situation, but Canady continued to yell in front of customers and other employees. Kirch suspended him for the rest of the day and obtained approval from Wal-Mart's corporate office to fire Canady for gross misconduct and insubordination. Canady sued, alleging race discrimination and a hostile work environment. A Missouri district court found for Wal-Mart, and Canady appealed to the 8th Circuit, which includes Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

What the court said. To succeed on his discrimination claim, Canady had to show that that discrimination was a motivating factor in Wal-Mart's decision to terminate him. The court explained that while Smith's comments "could well be considered racially offensive," he was not involved in the store manager's decision to terminate Canady. Since Smith's remarks were made outside of the decision-making process, and Wal-Mart had articulated a legitimate, nondiscriminatory reason for its actions­that Canady was insubordinate­he could not succeed on his claim.

As for the hostile work environment claim, Canady had to show that the workplace "was permeated with discriminatory intimidation, ridicule, and insult." The court concluded, however, that "however ill-chosen Smith's comments ? and however ill-advised his attempts at racial humor, Smith's conduct did not give rise to an actionable claim of racial hostility." Canady v. Wal-Mart Stores, Inc., U.S. Court of Appeals for the 8th Circuit, No. 05-1137 (2006).

Point to remember. The court acknowledged the recent Supreme Court decision (Ash v. Tyson Foods, Inc.) in which the Court determined that a supervisor's use of the term "boy" could in itself be proof of bias depending on the context it was used, and noted that a term like "slave driver" could also be considered evidence of racial bias. However, when viewed in context, Smith had used the term to describe his own reputation as a manager.