Unless you’ve been living under a rock (no pun intended), you saw Will Smith slap Chris Rock at the 94th Academy Awards ceremony. Today, the Academy’s Board of Governors issued a statement that “for a period of 10 years from April 8, 2022, Mr. Smith shall not be permitted to attend any Academy events or programs, in person or virtually, including but not limited to the Academy Awards.” To make matters worse, Netflix has put Smith’s latest project, Fast and Loose, on the back burner in response to his behavior at the Oscars.
This incident raises several questions about the rights of employers and employees in the face of workplace violence allegations. The Occupational Safety and Workplace Administration defines workplace violence as “any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. It ranges from threats and verbal abuse to physical assaults and even homicide. It can affect and involve employees, clients, customers and visitors.” It goes without saying that employers have right to discipline employees who engage in workplace violence. Additionally, it might come as a surprise to some employees that they can be disciplined for engaging in violence entirely outside of the workplace.
Although Netflix and the Academy have every right to take disciplinary action against Smith, some have raised questions about whether their actions were racially motivated. It is no secret that many major players in Hollywood have been the subject of similar, and even worse, controversies. And yet, many have not faced similar scrutiny from the Academy. For example, White director Roman Polanski has spent the last 4 decades as a fugitive following his conviction for sex crimes against a minor. Despite this, the Academy awarded him with the Best Director award in 2002. Similarly, John Wayne was not banned from the Oscars after he tried to fight a Native American activist at the award show.
Can Will Smith claim this disparate treatment is a racially motivated violation of Title VII? Probably not. First, it is unclear whether the Academy can even be considered an “employer” under Title VII. Even putting that issue aside, it is typically not enough for a plaintiff to simply point out that other people of different races were treated differently. They need to show that the same decisionmaker was responsible for disciplining both parties. Moreover, plaintiffs in disparate treatment cases need to show that similarly situated employees outside of their protected class engaged in roughly the same conduct but were met with more favorable treatment. No one in Oscar history has ever assaulted a presenter on live TV; therefore, Smith probably couldn’t identify a truly similarly situated comparator. Moreover, Smith cannot point to a common decisionmaker, given that the Academy’s Board of Governors has surely changed since the days of John Wayne and Roman Polanski. As it stands, the Academy is well within its rights to take disciplinary action against Smith, even if White actors and directors from the past were let off easier than he was.
If you have questions about the workplace violence, race discrimination in the workplace, or any other area of employment law, contact Thatcher Law Firm at 301-441-1400. www.ThatcherLaw.com. We help employees protect their rights against various forms of discrimination and retaliation. We also provide training to employers at the corporate and small business levels on a variety of employment issues ranging from discrimination/retaliation to Covid-19. Follow us on: