When I was in my teens ( we won’t say how many years ago) I remember being in a restaurant staring at a picture of Michael Jackson. Something was wrong with the picture and at first, I couldn’t put my finger on it. Then it hit me. The picture showed him as white– at a time when his skin color was clearly still Black. Other than thinking it was odd, I don’t think anyone at the time felt it was wrong or offensive. Maybe it was partly because he didn’t seem to find that portrayal offensive. Yes, his skin changed over time, apparently due to a skin disorder, but that was much later.
We know that a White person appearing in blackface is offensive and as such qualifies as racial discrimination and harassment. Does the reverse also apply? Suppose one or more Black employees are portrayed as White? Is that also racial discrimination? What should you do if such an occurrence arises in your company? Can you be sued? If so, are you liable? What can and what should you do if you do encounter such a situation in your workplace? Let’s look into that and see what comes up for us, shall we? 
Before we dive in, I feel I need to say this: I’m not making this up–and yes, there’s a real case about this issue. Latosha Clemons, Boynton Beach Florida’s first Black female firefighter sued the City on this very issue. Here, in a nutshell, is what went down:
Latosha Clemons became the City’s first Black female firefighter in 1996 and served in various capacities for 26 years. Over those 26 years, Ms. Clemons rose through the ranks, and ultimately became the City’s first Black female Deputy Fire Chief. The City commissioned a mural intended to honor the Fire Department in general and Ms. Clemons and co-workers in particular. A photo of Ms. Clemons and 2 White female firefighters was supposed to be the template for the mural. Ms. Clemons approved the photo and the City approved the mural.
The unveiling of the mural occurred on June 3, 2020–revealing a big problem. The mural was altered to reflect Ms. Clemons as White, with her, and her co-workers’ facial features blurred. That’s not all. The City’s former Fire Chief, who is also Black, was also portrayed as White. Ms. Clemons sued the City in April seeking $100,000 in damages, alleging that “the actions of the city were done intentionally and knowingly to defame and injure Clemons” and they have caused emotional and mental harm as well as financial loss.”
The complaint also alleges that Fire Chief told the Public Art Manager to change the template for the mural (presumably to cause Ms. Clemons and the former Fire Chief to be depicted as White). The City claims that they acted “outside the scope of their employment, and without the consent of the City”. In the wake of the lawsuit, the City’s public art manager and its then Fire Chief, both of them White, were fired. The parties are now reportedly about to settle the claim for $80,000.00. The City removed the mural the day after the unveiling. For those who might not quite see why this portrayal of Ms. Clemons is a problem, the complaint says it: “Being depicted as White was not only a false presentation of Clemons, it was also a depiction which completely disrespected all that [she] the first female Black firefighter for the city had accomplished,”
OK, the City does get points, in my book, for acting quickly after the disastrous unveiling. The problem, of course, lies in what happened –and what didn’t happen– before. The City had to defend and settle a lawsuit that shouldn’t have had to happen. This was an avoidable lawsuit. You might be asking, “How was it avoidable if the City allowed a mural that was so grossly disrespectful to Ms. Clemons, to her and the former fire chief’s service and accomplishments, and the Black community?” The answer is that the portrayal itself, and therefore the lawsuit, could have been avoided.
Wait. How could it have been avoided if the Fire Chief himself told the City’s Public Art Manager to alter the template, and the Public Art Manager did so? Let me point out the obvious: they both have bosses. The Public Art Manager did not have to go along with the request. She could have brought in her boss. She could have refused to alter the template. Might she have been fired? (If so, she probably would have had a claim against the City). In any case, it’s clear that she ultimately didn’t save her job by altering the template — and may well have difficulty getting another job now.
It comes down to a question I ask often: Who’s monitoring the monitor? People in high positions, in charge of managing people and processes still need to be accountable. They too need to be monitored, in some ways more than rank and file staff, precisely because they have more authority. You don’t need me to tell you that power can, and often is, abused. The City could have had processes in place to ensure that public art would not be offensive, racist, or discriminatory. If it did have processes, it could have followed them and held everybody to those processes and standards.
Let this case serve as an example for all other employers.
