Workplace dispute, racial bias claims get mixed results in 8th Circuit ruling

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A contract attorney of Asian descent sued her former employer and co-workers for allegedly targeting her with slurs and other tortious conduct. On Aug. 22, in May Yang v. Robert Half Int. Inc., the 8th U.S. Circuit Court of Appeals dismissed most of the employee’s claims.

May Yang was employed by Robert Half, an agency that provides legal staffing. Yang and two of her co-workers, who were friends, were in constant conflict with one another. Originally, one co-worker began talking to Yang about politics, despite being warned not to do so in the workplace. The co-worker then made a statement, “Look at all these Ukrainian names like ‘yourslutsky.’” Yang interpreted the comment as the co-worker calling her a “slut.”

Yang also claims that there were other instances that co-workers hurled the term “ho” at her. Co-workers mentioned the state names “Oklahoma” and “Idaho,” which Yang interpreted as calling her a “ho.” Another co-worker wore a T-shirt with a “Lake Tahoe” emblem, which Yang took as a personal insult because “ho” is in the word “Tahoe.” In yet another instance, Yang said she was “happy,” but a co-worker later said she was “Ho-Pee.” Another statement made was “we lost a ho’ person.” Yang concluded that the co-workers were calling her a “ho” through wordplay and indirect comments.

Things came to a head in 2019, when Yang and a co-worker were involved in a physical altercation. Both attempted to go through a doorway at the same time. Yang and the co-worker accused the other of tripping. However, no person fell or was otherwise injured during the doorway incident.

After the doorway incident, Yang commented, “If I were to insult someone enough, do you think my thighs would get slimmer?” Looking at one of the co-workers who allegedly targeted Yang, Yang asked, “How are we feeling? Is someone uncomfortable?” At this point, Robert Half took Yang off the project with her co-worker and removed her from the mass email notifications about projects.

In July 2019, Yang filed a complaint with the EEOC. That summer, Robert Half investigated the complaints, but it was unable to independently corroborate or substantiate the allegations. The company assigned Yang and her co-workers to different projects. Yang resigned in October 2019.

After Yang resigned, Yang filed this action in U.S. District Court. Yang sued her former employer and former co-workers for race discrimination and various torts. In 2021, the court dismissed one co-worker from the case. A year later, it dismissed all claims against the other co-worker and Robert Half.

Yang appealed eight counts against Robert Half, including race and national origin discrimination under Title VII and the MHRA, reprisal discrimination, hostile work environment, and negligent and intentional infliction of emotional distress. She also appealed claims against her co-workers, including a battery claim stemming from the doorway incident.

The court did not find that the “ho” comments were racially motivated. “Other than Yang’s inferences which are speculative and unsupported, there are no allegations or facts in the record tying these slurs to Yang’s race,” the court wrote. Nor did the court find that the “ho” statements were defamatory pe se.

Nor was the court persuaded that Robert Half discriminated against Yang based on her race. Yang asserted that she suffered an adverse employment action when she was removed from a project early and that this was racially motived. However, the court noted that Yang was removed due to her comments about her co-worker’s body size.

However, the 8th Circuit did revive the Yang’s battery claim. After viewing the surveillance video, the 8th Circuit determined that there was sufficient evidence to create a factual dispute about whether Yang’s co-worker attempted to trip Yang. “In the video, Yang appears to push past Miller, Miller is pushed forward slightly and lifts her right leg behind her, appearing to intentionally cause Yang to stumble,” the court concluded. It reversed the district court’s granting of summary judgment on the battery claim and remanded from proceedings.

Yang declined to comment on the case.

Marshall Tanick, shareholder at Meyer Njus Tanick, represented a co-worker who was dismissed in the case’s early stages. He asserts that the quality of the video makes it difficult to see exactly what happened, and that this difficulty explains why Yang’s battery claim survived.

“Viewing the video surveillance recording of the encounter between Yang and Miller is like watching a blurry version of the Zapruder film in Dealey Plaza in Dallas; you can interpret it in different ways, which is why the court remanded that single portion of the case,” said Tanick.