TV chef Paula Deen has given us a “piece of cake” employment law blog topic. Deen and her brother have been sued for race discrimination and sexual harassment by a former employee of a restaurant the pair own. Reports of Deen’s recent deposition testimony have been slathered across the news like gravy on a chicken-fried steak.
According to court documents, Deen admitted in her deposition that she used the N-word many years ago after being robbed while working as a bank teller. She also admitted previously discussing her desire to cater a wedding using a staff comprised of middle-aged black men, reminiscent of pre-Civil War plantation days. According to the LA Times, Deen is reported to have testified: “The whole entire wait staff was middle-aged black men, and they had on beautiful white jackets with a black bow tie. I mean, it was really impressive . . . And I remember saying I would love to have servers like that, I said, but I would be afraid that someone would misinterpret [it].”
Deen’s comments raise the issue of how racial (or other discriminatory) comments are used in employment discrimination cases. When a comment by a decisionmaker relates directly to a particular challenged employment action, the comment is known as “direct evidence” of discrimination. A plaintiff who can offer “direct evidence” of discrimination gets to use an evidentiary framework generally considered easier for plaintiffs. If discriminatory comments do not relate directly to the challenged employment action, or were not made by the decisionmaker, courts typically give the comments less weight as evidence. In the Paula Deen case, the comments — while tougher to swallow than undercooked greens — fall into the latter category. In fact, the plaintiff may not even be able to get the comments into evidence unless she shows they are a necessary ingredient for the dish she intends to serve at trial (i.e., that they are relevant to her race discrimination case).
Discriminatory comments in the workplace can be a pretty strong spice in the stew that is a discrimination lawsuit. How strong that spice will be depends on the facts of a particular case. Paula Deen might be saltier than bad gumbo, but her goose isn’t cooked quite yet.