The Vermont Supreme Court affirmed a state labor relations board decision that a supervisor at Chittenden Regional Correctional Facility should not have been fired for making a comment perceived as racist.
But two justices, including Chief Justice Paul Reiber, dissented from three of their colleagues. Reiber and Associate Justice Nancy Waples argued the impact — not the intent — made the comments discriminatory and severe enough to merit termination.
While a Black colleague he supervised heated up his lunch at the South Burlington facility in late 2020, Michael Miller asked if the food in the microwave was fried chicken, according to employee accounts cited by the court. When the employee informed Miller his meal was in fact seafood, Miller again said it smelled like fried chicken, the documents showed.
The colleague told the Vermont State Employees’ Association and prison leadership that he found Miller’s comments “very racist,” and an investigation ensued.
The state fired Miller for his actions, arguing he’d “engaged in discriminatory and unprofessional behavior” and lied during the investigation. Miller denied that his comments were racially motivated, documents show.
Miller, with the help of the state employees’ union, appealed his termination to Vermont’s Labor Relations Board.
After reviewing the case, the labor board called the comment an “isolated incident,” documents show, determining “there was no evidence of racial discrimination because grievant’s fried chicken comment did not alter the material conditions of coworker’s employment.”
The board ultimately upheld three of nine claims the state made against Miller, deciding to subject him to a 20-day suspension rather than termination. The state then appealed the decision.
In affirming the labor board’s action, the high court’s majority cited multiple federal cases involving claims of employment discrimination based on fried chicken-related comments. Judges in those decisions determined that such comments, while “deplorable,” “offensive” and “inappropriate,” did not rise to the level of racial discrimination under federal law.
Associate Justice Waples authored a dissenting opinion, cosigned by Reiber, arguing that the state was right in firing Miller, and that “the consequences of the majority’s holding would be to hamstring the State from taking action to correct behavior that is even more vulgar and racially charged than that at issue here.”
“The resulting consequences will be to hinder the recent progress this State has made in encouraging a more diverse workforce—one that looks like and shares the experiences of the communities it serves,” Waples wrote.
The state’s employment policies do not require “intent” when making a harassment and discrimination claim, the dissenting justices suggested.
“Requiring intent precludes discipline for a wide array of racially insensitive conduct, such as microaggressions, and thus places such behavior outside the protections of the (employees union’s collective bargaining agreement),” Waples wrote. “The impact of the action, not the intent of the actor, is key.”
Reiber and Waples co-chair the court’s commission on diversity, equity and inclusion.
Read the story on VTDigger here: Vermont Supreme Court says ‘fried chicken’ comment did not merit termination of prison supervisor.