California Man Fired Over Alleged Racist Hand Sign Said He was Cracking His Knuckles
“I don’t know how long it’s going to take me to get over this, but to lose your dream job for playing with your fingers, that’s a hard pill to swallow.”
San Diego Gas and Electric (SDG&E) fired employee Emmanuel Cafferty after a stranger took his picture on the highway because he supposedly made a white power gesture.
From NBC San Diego:
Cafferty claims he was just cracking his knuckles.
Soon after the encounter, a supervisor of Cafferty’s told him he was suspended and that further action may be taken after an investigation. A few days later, he says he was fired.
Cafferty maintains he was unaware of the hand gesture until the whole controversy started.
“When my supervisor said that I was being accused of doing a white supremacist gesture, that was baffling,” Cafferty told NBC 7 on Monday.
“I don’t know how long it’s going to take me to get over this, but to lose your dream job for playing with your fingers, that’s a hard pill to swallow,” Cafferty said.
The traditional sign for “okay” has been used for as long as I can remember. But these rights groups claim that white supremacists have only recently used it as a white supremacist sign “to form the letters W and P.”
Cafferty didn’t even use it as the okay sign. Has the Twitter person ever seen how people crack their knuckles?
Look at SDG&E’s statement:
SDG&E said in a statement: “We hold all SDG&E employees to a high standard and expect them to live up to our values every day. We conducted a good faith and thorough investigation that included gathering relevant information and multiple interviews, and took appropriate action.”
Um, what? Obviously the company did not!
The man behind the Twitter account deleted the account. He told NBC San Diego “he may have gotten ‘spun up’ about the interaction and misinterpreted it” and “never intended for Cafferty to lose his job.”
People. Please. For the love of everything in the world step back, take a deep breath, and think. It only takes a minute to ruin someone’s life.
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Welcome to Barack Obama’s America.
With lots of assistance from the Democrat/Socialist Party and the Propaganda Press.
Crack the Democrats and their Evil-Media.
The news report helpfully blurs out the hand of the accused so no one can actually see what he is doing and thus, come to any sort of conclusion regarding his actions.
There may not be legal redress against the man’s employer, most places have “at will” laws, but the person who recorded the man and released this, claiming racism, may be at risk. What happened was potentially liable that resulted in harm to the target.
Nope. The first amendment protected his right to take the photo and to communicate it to anyone he liked. He didn’t tell any lies about it; it speaks for itself, and if some hysterical people jumped to bizarre conclusions from it that’s entirely their fault.
Fuck off Justice Millhouse.
The little bitch admitted he fucked up. Hope he gets cleaned out by the geezer for his malicious claim.
You fuck off. You are not just ignorant but proud of your ignorance, and unwilling to learn anything. You’re an enemy of knowledge and the truth. You want reality to change itself to suit how you wish it were, and hate anyone who points out that it isn’t. In other words you’re the very model of a “progressive”. So fuck off to Kos or Vox or wherever the lefties hang out nowadays.
Nope Milhouse, he took a photo or video and then claimed, in public, the man was racist, causing the man to lose his job. He made a damaging claim carelessly with no basis of fact that caused the victim quantifiable damage. It is actionable. He is not a public figure so all that is required is that prospective Plaintiff show defendant acted with careless disregard, that is, prospective Defendant took no reasonable action to ascertain the truth or falsity of his statement. Prospective Defendant can certainly take any video he desires, but when he matches that video with a defamation taking no care to ascertain the truth of that defamation, prospective Defendant acted with careless disregard to the prospective Plaintiff’s reputation while causing financial harm. If you say, “Joe is a racist,” you are making an assertion of fact, for which you must have a strong basis to assert in a public domain for non-public figures. Failure to do so is to act in careless disregard and is libelous, defamatory, and actionable. Standards for public figures are higher because they have public records from which a person may develop and render an opinion.
I could go on about how your theories of defamation are incorrect, but you do not understand the difference between statements of fact and statements of opinion. The latter must be based on facts reasonably ascertained, that is, there must be a sound basis for an opinion when rendered and publicized about a person not in the public eye. That opinion cannot be carelessly or recklessly derived. Without careful predicate, the “opinion” is not an opinion at all, but, rather, a wrongful primary statement of fact from which damaging opinions could then flow, such as, “that guy should be fired.”
To move successfully against a defendant for defamation, all that needs to be shown is a statement was (a) published, (b) false, (c) injurious, and (d) unprivileged. This instance meets this threshold for movement in all likelihood.
To survive Defendant’s motion to summarily dismiss, all that must happen is that Plaintiff present these four elements in their motion. Defense can argue in motion to dismiss all they want that Plaintiff is wrong about any of the above elements, but the judge merely looks at Plaintiff’s motion and determines that if everything Plaintiff claims is true, which will be decided at trial, the motion contains the required elements in claim, and can therefore proceed.
Sorry, BSR, you’re just wrong.
No, you are not. Claiming someone is racist is a conclusion, which is a kind of opinion, and opinions cannot be defamatory. Ever. That is the law, whether you like it or not.
That is not true. The law is the exact opposite. Opinions are not actionable no matter how absurd they are, and no matter how little basis they have. Opinions cannot be true or false, they can only be right or wrong. And that means they cannot be defamatory, because falsehood is a required element.
Now sometimes an opinion is expressed in a way that implies it is based on facts that are ugly but unstated. And that implication can be defamatory, if those facts turn out not to exist. But in this case there is no such implication, because the person gave the basis for his opinion. He explicitly said that the reason he believes the driver to be racist is because of the gesture he made. So everyone knows that that is the only fact underlying the opinion, and nobody would conclude that there must be more. And that makes it definitely not actionable.
None of this is in any way controversial. There is no dispute about it. There are no contrary opinions. You can ask any lawyer, or look at any source for defamation law, and they will tell you exactly what I just said.
The Court in the Oberlin College case ruled that the statement “Gibson’s is racist” promulgated in flyers was per-se defamatory.
BSR summary is a well written and cogent analysis of defamation laws as applied in most States.
No, it didn’t.
To quote Popehat:
Milhouse — you need to take this up with the Judge in the Oberlin case immediately. The Court framed the legal issue around whether Oberlin participated in distribution of the “Gibson’sis Racist” flyer:
If perhaps you send him a note, this injustice to Oberlin can all be undone.
Are you really so thick that you don’t understand this, or are you just making things up for fun? The flyer in question was defamatory not because it called Gibson’s racist, but because it made actual factual statements about it, alleging objective facts rather than opinions, and Gibson’s demonstrated that those factual statements were not true. Had the flyer merely said “Gibson’s is racist” there would have been no case.
At will employment laws allow the employer to fire at will for any reason or no reason but not for a discriminatory reason. The employer here has already conceded that they accuse the employee of racism. He probably has an employment claim and definitely has a defamation claim.
Accusing or suspecting him of racism is not a discriminatory reason. “Racism” is not itself a race, or any other of the grounds on which discrimination is banned.
Nor would he have a defamation case unless he suffers a loss from some other party because PG&E communicated its accusation to them. So if he gets turned down for a job because they called PG&E for a reference and a PG&E employee told them “Don’t hire him, he’s a racist”, that would be defamation.
But even then it would only be defamation if they didn’t say how they know he’s a racist, which would imply that they had observed him saying or doing something that genuinely evidenced racism. If they said exactly how they “knew”, because he’d been photographed making this hand gesture, then it wouldn’t be defamation, because the fact that he made the gesture is true, and the conclusion that it exposes him as a racist is a bizarre opinion, which by definition can’t be defamatory.
He really was the Manchurian Candidate most of us here thought he was.
That lying wretch Pelosi is not much better. Then of course there is “Madame President” – aka, the president who would have been a madam.
Living through history is scary stuff.
Pronounced “mah-DAMN President”.
What a great lawsuit this guy has.
Business In CHOP To Sue Seattle For Abandoning The Area
Weazil Zippers
Time to sue over the face daipers too.
PHEARLESS PHARAOH
·
2m
THE RESULTS ARE IN.
87% of the respondents voted “NO” on #WearAMask; Making the
@foxnewspoll
bunk.
Also hidden in the story was this: 61% “strongly”approve of
@realDonaldTrump
Those business owners, who btw voted in this Seattle government, are about to learn some hard lessons. First one they’ll encounter is qualified immunity. They won’t be able to hold any of these persons, mayor, city counselors, police, personally liable/responsible for any of the acts they did setting in motion the disastrous train of events.
And whether they’ll be able to hold the government as a body responsible is also doubtful because of general governmental immunity.
Type “Police Have No Duty to Protect You, Federal Court Affirms Yet Again Ryan McMaken” for a recent Mises Institute article that lays out the general rules on this topic.
“What a great lawsuit this guy has”
Be curious to know if he’s been a Democrat voter over the years. It’s Democrat policies that have paved the way for all this lunacy.
Against whom? For what? What happened to him is horrible, but I don’t see how he has any kind of case at all, against anybody.
I think he has a grievance for wrongful termination.
There’s no such thing. Unless they have a contract, employers can fire people at any time, for any reason or none, just as employees can quit at any time, for any reason or none.
Particularly as SDG&E appears to be a union shop
Everything posted on social media is intentional so I believe that the jerk who posted this fully intended something bad to happen to this unaware citizen…even absent any proof of racism. And actual facts bear this out.
This is cancel culture. This is progressive thought brought to us by the socialist Marxists that run our educational system. As we see every day, our ignorant youth show us that emotions are their touchstone, not logic or facts. I blame every single teacher that has allowed this to happen under their watch. Until homeschooling kills off government funded education, we’ll keep marching toward civil war because Americans won’t continue to allow Communists to take over this great country.
How you you racist that see race in everything sleep at night?
The Karens are out in full force.
It’s not even a “white power” hand gesture, but a 4chan goof, not that facts matter anymore.
yup.
but you can’t reason with a mob…
Reason?
Oh the Democrats and their Media will have none of that.
Reason and Emotion
(Leonard Maltin intro) – Walt Disney Treasures
https://m.youtube.com/watch?index=14&t=0s&list=PL8VDBa4FYyrixkdY1oQy4Tw3UJptwdOVj&v=qTIai1boffM
It would be interesting to ask PG&E if they knew what that hand-gesture meant BEFORE firing the guy. Or if they just accepted the accuser’s word for what it meant. And IF PG&E knew before hand, was the employee specifically educated by HR via “sensitivity” training?
Wife and I were talking about some of the silliness last night and she recalled an experience at an icy intersection, where she saw a friend and rather than take her hands from the steering wheel to wave, she nodded in acknowledgement. When my wife ran into her friend later, the friend was upset by the head nod claiming it meant something derogatory to Italians. My bride asked “are you Italian?” “No.” She said “does (lastname) sound Italian to you?” “No.” We often joked about being the only German descent residents in the village, where it seemed like everyone had a last name ending in ini or oni. People would sometimes ask “what kinda name is (ours)” and we’d respond “would Shwartzeroni be better”?
We wouldn’t have to look far to find something offensive in every gesture to some culture. Hopefully, we’ll return to the day that we ask people what they intended instead of vesting all power in what people think the speaker meant.
Shwartz?
I’m so sorry for the systemic racism your family has endured in this horrible country.
May I wash your feet and give you all of my hard-earned money?
What would be the appropriate equivalent of a kente scarf for this particular prostration?
Ha! Didn’t see that coming! 😉
It’ll be more interesting to see their answer in a lawsuit.
We are dealing with insane, infantile, callous, evil, goose-stepping totalitarian jackboots. That’s what the Dhimmi-crats plainly are. And, this is how the German National Socialists took over a country — because everyone was too cowed and feckless to stand up to the mob. That’s the kind of craven appeasement this corporate cowardice exemplifies. And, such appeasement only emboldens the brownshirts.
Ok? Rock on? Black hole… whore? h/t NAACP #DiversityRacket
It seems like a lawsuit might be in order here.
Against whom, for what? I don’t see how there’s a case against anyone. Maybe a publicity campaign to shame PG&E into reversing its decision; but unless he had a contract I can’t see how there can be a lawsuit.
He has an EMPLOYMENT contract.
He also has civil rights.
He also could have a claim against the people who took the picture and if they falsely accused him to his employer, they’re in for it.
He has been very publically libeled.
He has VERY serious damages. In the MILLIONS.
Since when does he have a contract? How do you know this?
His civil rights are irrelevant. None of them was violated.
He has no case against the photographer. They had every right to take the picture, and they didn’t falsely accuse him of anything, they truthfully told the employer that the picture was of the driver, and truthfully communicated their strange interpretation. They did not imply any false facts that were not in evidence in the photo.
Where is the libel? I don’t see how he gets five cents, let alone millions.
Are you on drugs?
Was that directed at FineReport? I think he’s naturally on drugs; his body must produce them.
If there’s something I wrote that you think is wrong, point it out and explain why. Because as far as I know nothing I wrote is even slightly controversial.
OK, you’re right. It’s beyond absurd to think this guy has a case. WTF was I or anyone else here thinking?
Thank you for pointing out the error of my ways. I bow, kneel and scrape to you, o great one. In your dreams.
By the way, where is your law degree from?
So you’re proud of your ignorance?! You didn’t know something; I informed you; a normal person would be grateful for the information and go away better informed. Only a boor resents being informed of the truth, because he prefers to be ignorant.
And what has a law degree got to do with it? You don’t need a law degree to understand such a fairly simple concept.
You get to judge me when you know me, pal. You don’t. I’ll continue to take your posts with the same single grain of salt with which I have always taken them. Dismissed.
By the way, while you were bloviating, you completely missed that I wasn’t thanking you at all, jackass. Next time I want your opinion (and that’s all your blatherings are) – or even care what it is – will be the first time. Bye, Katen.
You judge yourself. In our one interaction you have shown yourself to be a nasty person, a miserable excuse for a human being.
You commented that you thought there might be a lawsuit. I replied with a perfectly civil and polite comment, asking against whom that suit might be, and for what. To which you reacted with insane fury, as if I’d insulted you. I hadn’t insulted you then, but I am doing so now.
And I didn’t miss that you weren’t thanking me; I pointed out that a normal person would have. You are clearly not a normal person but a vicious rage-filled snowflake just like the people who are wreaking so much havoc now.
(Okay, who recalls this exchange?)
“Florida State University.”
“Yes, that’s a nice school, too.”
The arbitrary, unpredictable, and constantly changing taboos of political correctness are a feature, not a bug.
Its purpose is instill constant fear and “learned helplessness.”
If people know what the rules are, they can follow them no matter how oppressive they are. But if the rules are always and unpredictably changing, people can never be sure what might get them fired, mobbed, or sent to the Gulag. They become timid and easily controlled. That’s the ultimate goal.
+1000
Why would a Mexican-American extol white power?
What an amazing lawsuit is in the works.
He is a “white Mexican”, or so the media will argue.
If i lost my job because some Snowflake might be offended.. That person better go into hiding! If I found them the Police would be the least of their problems…..
Somewhat on-topic: I have a relative (a self-described big-tent Republican) who plans to vote the straight Democrat ticket this November. They strongly disapprove of the violence and Maoist aspects of BLM and Antifa, but are convinced that only Democrats can effectively confront it, and that Republicans are hopelessly racist. They want the country to “return to normal”, as they put it.
Yep, what a swell idea! That is like being deeply concerned about anti-Semitism and violence against the Jews, and concluding that Adolph Hitler and the Nazis are best suited to stop it, so we should vote for them.
“We hold all SDG&E employees to a high standard and expect them to live up to our values every day.”
Because doing a good job is much less important than random video of how you hold your hands. THAT’s what it means to have VALUES.
Why do they force their employees to drive *WHITE* trucks? Bunch of racists!
They should let them drive trucks of color.
And that’s where a legal case may come in. If they fired him for using a White Power symbol (that really isn’t) he may have recourse to go after them.
Again, for what? Unless he has a contract, they don’t need a reason to fire him, so the fact that their reason is ridiculous that doesn’t give him a case.
What it does give him is the means either to reason with them, if they are open to reason, or to publicly shame them if they’re not. He can’t sue in a court of law, but he can sue in the court of public opinion.
And remember. The OK sign is not some white power sign. That was an entirely fabricated construct based on no evidence whatsoever. Extracted, again like so many left wing constructs, from a single comment on reddit. A anonymous comment among the other 4 million that day. The left wing then wields this nonsense as a weapon with the approval of the MSM.
Door to door gun confiscation will begin next January, justified because Democrats “are afraid” and stuff.
And what exactly is a white supremacy sign supposed to elicit as a response?
Maybe its the urge to erect a statue to a southern general?
On the plus side, both the employer and the (ex) employed are super-woke.
A known 4Chan hoax and it still has traction. Amazing.
So, the “okay” hand gesture means white power? Says who and since when? What, are they going to try to ban shadow puppets next? Who appointed these Karens to define hand gestures? I think I may have one for them to evaluate…has just a single digit raised.
People. Please. For the love of everything in the world step back, take a deep breath, and think. It only takes a minute to ruin someone’s life.
This assault isn’t accidental. Like Lyndon Johnson learned, if you give in at all you’re marked as a patsy, and the pressure will never stop. It’s irrelevant that it’s hysterical, nonsensical and counterproductive; it keeps you hopping, and that’s the goal.
The argument here shouldn’t be that somebody didn’t actually make some sort of white supremacist clan sign. It should be that if he did, tough shit. He can make any damn sign he wants, and you have nothing to say about it. That’s America, not this watered-down mush of a society of everybody tip-toeing around in the futile hope that they can avoid offending somebody else’s imaginary sensibilities.
Once you give in at the start, when it might seem that the demands are almost reasonable, it’s hard to stop when it all inevitably descends into madness. The demands are not intended to be reasonable. They’re intended to see if you’ll fight back or will automatically cave.
Totally with you, Tom.
Put yourself in a cage, look in the mirror, folks.
I am glad he lost his job. In fact, I am exceptionally ecstatic this happened. He’s a white Hispanic in a predominantly Hispanic area of CaliMexico.
How many times did he see an injustice happen to other whites and decided not to stand up for them? How many times did he allow whites to be viciously accused of racism and did not say anything?
This is a case: “When they came for the Jews, I didn’t say anything. When they came for the Catholics I didn’t say anything. When they came for me there was no one to defend me.”
Please please please, Democrats, BLM and Antifa, continue to destroy this country. Burn it. Loot it, Get people fired. Make everyone’s life miserable.
Then the masses will come for you.
This just in…taking a deep breath is a gesture of white supremacy. Hold it in but not too deep, folks, you don’t deserve the same amount of air as all of the pure minorities.
As Tom Swift said, “The argument here shouldn’t be that somebody didn’t actually make some sort of white supremacist clan sign. It should be that if he did, tough shit. He can make any damn sign he wants, and you have nothing to say about it.
That’s America, not this watered-down mush of a society of everybody tip-toeing around in the futile hope that they can avoid offending somebody else’s imaginary sensibilities.”
In accord with that, this idea that “racism” means you should be blacklisted, fired, deplatformed, etc., I find ridiculous and offensive.
This religion of “anti-racism” violates our freedom not just to speak, but to THINK. We have the right to THINK and SAY whatever we wish.
I also appreciate that Tucker Carlson this week didn’t ASSUME we should have hate crimes, but explicitly assumed it for the sake of discussion.
Ayn Rand’s principle, that what should be prohibited is the initiation of the use of force against another, should guide the law. Not what we think. Tom Jefferson was of the same mind, although he worded it a little differently.
And frankly, the civil rights laws have destroyed our rights of association, etc. Our civil rights should be restored. It would be great to be able to deny aliens employment, etc., legally. Then the S.O.B.s would leave the damn country.
Not on the job, he can’t. Not when he’s representing his employer. If I go to a store and the cashier gives me a nazi salute, or says something antisemitic, you can be sure I will report him to his boss, and if he’s not disciplined I will boycott the store and tell everyone else to do the same. When he’s on his own time and not in a work uniform or driving a company car, then sure, he can be as nasty as he likes; this is America, after all. (And either way, of course, it’s none of the government’s business.)
Oh, here’s Mr. M again.
Oh, yes, Mr. Law-itis.
Is there anything I wrote that you think is incorrect? If so, point it out and explain why. Otherwise shut your bleeping pie-hole. Objecting to the truth because it is the truth is the most obnoxious thing possible for a person to do.
None of this would be happening if dumbass corporations didn’t pander to deranged people. Instead of saying, “well, thanks for calling” (now go the hell away), companies are taking the most innocent gestures seriously as if this guy had Neo-Naxi symbols tattooed on his face.
To all of you who did not really understand what at will employment means, it means that there is no contractual notice period or particular reason needed to fire somebody. But if you say to an employee, “You are a racist and therefore I am firing you,” then two things happened. First, if the employment laws are interpreted to mean that you can fire someone for any reason or for no reason but cannot fire someone for a false reason (I don’t know the law in California), the employee can sue under the employment law. Second, the employee has a defamation claim because the employer made a false and damaging statement about him. If you don’t believe that falsely accusing somebody of being a racist is defamatory, ask Oberlin college how that worked out
Yes, but a third party made a claim of racist actions of an employee to their employer. The employer has a right to protect its reputation, and accepting the false allegation, in good faith, acted. They did not make the allegation themselves, they simply accepted an allegation from another as fact and acted upon it. Unless they knew the allegation was indeed false, and acted upon it in any event, they have no liability that I can see, most likely. Because of the need to defend its reputation, it is unlikely a Plaintiff could show the employer acted with careless disregard, that is, it had a valid incentive to act upon the third party claim, though it may later turn out the claim to be unfounded or even maliciously false. It is the party making the initial defamatory claim that has liability here. The fact that the defamatory claim by the third party caused damages to the employee is the cause of the damages to the employee, not the employer’s reaction to a defamatory statement the employer acting upon in good faith.
No, BSR, the third party accurately told the employer the exact basis for his conclusion that the employee was racist. He didn’t just say “He performed a racist act”, he said exactly what that act was. And his report was perfectly true; it just doesn’t support the conclusion he drew from it. The driver did exactly what the person said he did, it just didn’t mean anything like what the person supposed it meant. So the employer did not act in good faith. Either the employer is as stupid as the third party, and drew the same absurd conclusion from the true facts, or else the employer knows well that it’s nonsense and decided to fire him anyway. Either way there’s no liability on the third party.
“The driver did exactly what the person said he did, it just didn’t mean anything like what the person supposed it meant.”
And therefore careless and defamatory, and actionable if also “published,” that is shared with the public, damaging (causing someone to lose their job for example), and unprivileged (not said during a court proceeding, for example).
Wrong. Stating the exact factual basis for his opinion makes it NOT defamatory, no matter how absurd his conclusion is.
Not stating those facts would leave him open to a lawsuit on the grounds that a reasonable person would infer from his opinion that there were unstated facts supporting it. Stating them rules that out completely. Scroll up a bit and see the citations I lifted from Popehat.
Falsely accusing someone of being a racist is not defamatory, and Oberlin did not lose one cent for doing so. You are misrepresenting the case against Oberlin, which was not for the assertion that the Gibsons were racists. It was for false factual statements Oberlin made in support of that opinion. Had Oberlin simply stuck to the opinion and not made those factual statements the Gibsons would have had no case.
“It was for false factual statements…”
No, it was a defamation and libel case. This is abundantly clear.
Defamation and libel is false factual statements. Only those can be defamatory.
“Defamation and libel is false factual statements. Only those can be defamatory.”
Seems rather a bit of circular logic to me. And you are making my point. If I am innocuously cleaning my finger nails, or cracking my knuckles, or whatever, and you come along and accuse me of engaging in racist activity, you have then made a false and defamatory statement about me and my actions. If you make no attempt to certify that I am in fact engaging in racist behavior by, for example, asking me, you are making a defamatory statement about me with careless disregard to the facts. And if you publish this defamatory statement about me (communicate this to other people), and that publication of the defamatory statement causes me harm (my employer hears it and fires me), and if your statement was unprivileged (not connected to proceeding of law), then it is actionable as a matter of defamation and libel.
No, BSR. You really need to read the law on this. It’s very simple. False factual statements are (or can be) defamatory. Opinions and conclusions cannot. That the driver made the gesture is a fact. If it were false, then it could potentially be actionable. But it’s true, so that’s out. That the gesture was racist is not a factual statement, it’s an opinion, and therefore cannot be defamatory.
Had Oberlin merely said Gibson’s was racist there would have been no case, because that is an opinion. But Oberlin did not leave it there; it backed up this opinion with factual statements that it claimed led it to this opinion, and Gibson’s convincingly demonstrated that those factual statements were lies. That is why Gibson’s sued, and why it won.
He needs to sue for race discrimination. It is clear that he would not have been fired if he were black making this gesture (assuming for the sake of argument that he made any intentional gesture at all).
As Justice Gorsuch, in his great wisdom, has explained a few days ago in his wise Bostock majority opinion, if a woman would not be fired for having sex with a man, a man being fired for having sex with a man is fired because of sex discrimination.
Clearly a visibly black man “doing a white supremacist gesture” would not have been fired, therefore to fire a visibly white man for “doing a white supremacist gesture” is discrimination because of color (and presumably race).
The guy has a Title VII claim and should sue.
That’s a good argument, if only he could prove that a black person making the same gesture would not have been fired. I don’t think he can prove that. If challenged SDG&E will insist that its policy is to fire anyone who makes racist gestures, white or black. He’d have to find examples where black people did something comparable, management knew about it, and didn’t fire them.
What standard of proof do you think is applicable?
SDG&E’s statement, especially in conjunction with the denunciation and the statements made during that “investigation”, is quite clear. He was fired for that hand gesture.
Is there any doubt that the ok sign made by a black person will not be interpreted as a white supremacist gesture?
Put the HR manager that conducted the “thorough investigation” on the stand and ask. The manager will either admit that the identical gesture made by a black man would not have been interpreted as a white supremacist gesture. Which proves the point. Or the manager will try to claim that of course a black man making the ok-gesture would be fired for making a white supremacist gesture, a claim so outlandish that any fact finder will not fall for the obvious lie. (And I’m saying that all but truly psychopathic or sociopathic witnesses would exhibit signs of lying if they make that claim.)
It will not be a question of facts but it is a question whether the Bostock reasoning will be applied even when it leads to results that are less palatable to those that applaud Bostock.
In fact, if SDG&E had fired an actual white supremacist intentionally making that gesture the Gorsuch logic would still lead inevitably to this being a discharge because of race because a black person making the exact same gesture would not be fired. It does not matter what the gesture means and that it might signify different things when done by blacks and non-blacks because it is the exact same gesture. The only difference is the race of the person using the gesture – the six Justices of the Bostock majority would say. If they were consistent.
The usual standard of proof applies.
Of course he was fired for that hand gesture. That’s not in dispute so I don’t understand why you repeat it and emphasize it. But he would have to prove that a black person making the same gesture would not have been fired, and you have not given one argument that he could use to prove that. If challenged SDG&E will deny it, and he would have to find examples to prove that they’re lying.
First of all, simply denying will not work, because you need to get people to actually believe your lie.
Do you personally think that they would have fired the guy if he were African American with dark black complexion? Yes or no?
Don’t hide behind abstractions and obfuscation simply answer truthfully.
Now, if your truthful answer is that they would have fired the guy even if he were black I’ll admit that you probably honestly believe SDG&E has not discharged him because of race or color (which is likely true, but NOT according to Bostock reasoning). You’d also have convinced me that you live in cloud-cuckoo-land.
If, on the other hand, even you admit the absurdity of assuming any company in the United States in 2020 would discharge a black man for making “a white supremacist hand gesture,” please explain how any jury (or judge) would believe such a statement?
And a skilled attorney will get any non-psychopathic/non-sociopathic witness to admit that they would, their statement to the contrary notwithstanding, in fact not fire a black person for the same conduct.
I don’t know whether they would actually have fired a black person for making this gesture. It is possible that they would have, because they’re committed to a ridiculous “zero tolerance” regime. But whether they would or not, they will absolutely insist that they would have, and the onus would be on the plaintiff to prove, on the balance of probabilities, that they’re lying. And no, a skilled attorney will NOT get them to admit it. On the contrary, the moment plaintiff’s counsel tries to ask the question a second time defense counsel will object that it has been asked and answered. No, in order to make a case the plaintiff would have to actually find such examples to show the jury.
I would recommend that everybody who is arguing over whether the statement “X is a racist” is or is not defamatory or a mere opinion go back and do some basic research. A “pure opinion” cannot be defamatory. But when something purports to be as an opinion but necessarily implies that there are facts backing it, then the statement can be defamatory if those facts are false. Therefor, saying “X is a lousy artist” is almost certainly going to be characterized as a pure opinion that cannot be defamatory because it does not necessarily imply that the person saying it is basing it on any specific facts, just his own taste, good or bad, in art, music etc. However, if you say “X is a racist,” you are almost certainly implying that there are specific facts that lead you to believe that X is a racist. In this case, saying that “the driver’s hand looks like a hand gesture that racists use” would not be a defamatory statement, not because it is a mere opinion but because it is true, but saying that the driver is a racist — which necessarily implies that you have a factual basis for that, since the driver cannot be a racist unless he espouses particular beliefs that you are inferring he espouses solely from presumed intentional knowing use of that gesture — when you have nothing other the hand could quite well be defamatory if it turns out that his hand just happened to be drooping in that particular way or that he was unaware that that hand gesture even has racist connotations.
I already covered your point several times above. You are saying that while an opinion is not actionable, it may imply unstated facts that are actionable. This is true, and I covered it.
You may be implying that. It depends on whether a listener would draw that conclusion from your words. And if so then yes, it’s actionable. But where you supply those facts, and they are true, then it is not actionable, no matter how absurd it is to conclude from those facts that he is a racist. When a listener hears you say “I know he’s a racist because I’m psychic and I read his mind”, he concludes, not that the person is a racist but that you are a kook. Ditto if you say “I know he’s a racist because he’s white and all white people are racist”, or anything like that.
And I have not gone back to check who has the burden of proof as to whether the driver did or did not know the connotations of that gesture, intended that it be for that purpose, or was even aware that his hand was drooping in particular way. There is also the curious sequence of events, in which the employer claims that it did a serious investigation before it discharging him, but nobody knows what the substance of that investigation was or who made the decision and why.
And I readily concede that there is a gray area — statements as to which reasonable people might disagree whether they are pure opinions or opinions that imply that they are backed by facts. The Covington boys’ case, if I recall correctly, involved statements like that, where the judge at first thought that they were pure opinions but then backtracked and held that at least some of what had been written about the boys could be defamatory, which led at least one defendant to settle rather than take its chances in court.
But “X is a racist” is just not a pure opinion. One rough rule of thumb: what if you heard someone say that, and you asked, “Why do you say that?” Would you expect the speaker to back it up with facts, or would you accept an answer it like “Gee, I just feel that way about him”? If it’s the former, it is not a pure opinion.” And that’s where this case gets complicated, since if the fact that the speaker offered was “Well, he used that white power gesture, didn’t he?” since that gesture does not necessarily connote a belief in white power, the door is open to what the driver meant or didn’t even realize.
RRRR there are no implied unstated facts here, because the factual basis for the opinion is explicitly stated. We know he’s a racist because he made an OK sign. That rules out any suit for unstated facts. It’s exactly like saying “He’s a murderer, and I know this because I read it in my tea leaves this morning.” Kooky, but not defamatory.
Sorry, but I disagree. If you say “X is a murderer, and I know that because I read it in my tea leaves this morning,” the accusation that “X is a murderer” is not an opinion, but rather is a false and defamatory statement. Even if you had a reasonable basis for making the statement, for example because you saw a person who looks virtually identical to X commit a murder, you have committed defamation (unless X is a public figure where the NY Times v. Sullivan “reckless disregard of the truth” condition applies). And that is the way it must be, for otherwise there would never be any defamation because every person who slandered or libeled anybody else could say that he based the statement, which in fact is false, on what a little birdie told him. An opinion is excluded from the law of defamation only if it need not be based on any facts. If it must be based on facts, then unless the facts are true the opinion is the so-called opinion can be defamatory. The test can be fuzzy, but in some cases it can be very clear. In matters that are generally considered matters of taste, such as art appreciation, opinions are generally held to be opinions; but calling someone a “racist” implies knowledge of his beliefs or acts, and if you can’t cite any facts or the ones that you cite are objectively absurd (like tea leaves), you have committed defamation. Saying “I know X is a racist because he used the ‘N word’ as a slur,” may avoid defamation liability because almost every jury is going to conclude that there is almost no circumstance in 2020 where that slur does not connote racial animus. But the connection between the OK sign and racism is far too attenuated and the possibility that the driver didn’t know of it orceven realize how his hand was hanging leaves the driver in a far better place to contend that the company made a false and defamatory statement about him even if they say, “We know he is a racist because you made the OK sign.”