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Sunday, June 23, 2024 | Back issues
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Light Suspension Deemed OK for ‘Non-Racial’ Noose

(CN) - A Seattle port worker who hung a noose in the workplace as a "non-racial" joke should be suspended for 20 days, not six months, the Washington Supreme Court ruled.

Instead of putting a rope away as his supervisor requested, Mark Cann tied it into a noose over the shop floor as a joke aimed at a 70-year-old white co-worker.

"This is for Dick Calhoun, to put him out of his misery," he joked.

A black co-worker was not amused and reported the display. Cann apologized, but an arbitrator later found his apology to be less than sincere.

The Port of Seattle fired Cann for violating its anti-harassment policy, and the International Union of Operating Engineers Local 286 challenged the termination.

Cann's case went to arbitration, per the union's collective bargaining agreement with the port. Finding the Navy veteran's actions "more clueless than racist," the arbitrator decided that Cann should be suspended for 20 days rather than fired.

After the King County Superior Court intervened, however, a judge concluded that the suspension was so lenient as to violate public policy against workplace harassment.

The court ordered Cann to face a six-month unpaid suspension, make a sincere apology, attend anti-harassment training and endure four years of probation in which a second policy infraction would lead to termination.

Though the Washington Court of Appeals also found that the arbitration award could not stand, it said the lower court lacked the authority to institute its own remedy.

On further appeal, the Washington Supreme Court reinstated the arbitrator's ruling, finding the 20-working-day suspension sufficient to deter future infractions.

"When we take into account the specific circumstances of this case, we cannot say that a 20-day unpaid suspension would not provide sufficient discipline to cause this or other employees to understand the serious nature of a noose in the workplace and thus prevent a similar incident in the future," Justice Susan Owens wrote for the court.

The 17-page decision focuses only on the arbitrator's award and not the underlying conduct.

"Although the noose has a hateful, racist, and violent history in this country and we condemn Cann's ignorant and unacceptable actions, our scope of review is extremely limited," Owens added.

Ultimately, the arbitrator's award is simply not so lenient that it violates the public policy against racial harassment, according to the ruling.

"We do not determine whether a 20-day suspension is the appropriate punishment for Cann's actions or whether he violated antidiscrimination laws - either of which would be analyzed under a very different legal framework," Owens wrote.

"We choose not to speculate what level of discipline would have been insufficient to prevent a similar incident in the future," she added. "Further, a 20-day suspension might be wholly insufficient for a different set of facts and circumstances, but it would be inappropriate for us to explore such hypothetical situations here. We must leave those questions to another day."

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