Our Take
Management discretion to enforce conduct policy is not discrimination; the court's distinction between 'wrong' and 'discriminatory' reasoning gives employers broad latitude to terminate based on their own assessment of offense, even if that assessment is later proven incorrect.
Why it matters
HR leaders face constant pressure to thread the needle between swift action on offensive speech and exposure to reverse discrimination claims. This ruling removes one major uncertainty: if you document the policy violation, consult HR and counsel, and apply the rule evenhandedly, the termination will likely survive scrutiny regardless of whether the underlying judgment about offensiveness was accurate.
Do this week
HR: Pull your broadcast and live-event conduct policies this week and ensure they name the specific harms (reputational, policy violation, community offense) rather than relying on vague 'professionalism' language, so termination decisions in similar situations rest on documented policy, not subjective judgment.
How a Warning and a Six-Month Gap Shaped the Court's Ruling
Barbie Bassett worked as a morning anchor at WLBT, a television station in Jackson, Mississippi. On October 28, 2022, she made a racially insensitive remark on live TV referring to a Black reporter's grandmother. The station received numerous viewer complaints and employee complaints. Bassett received a written warning stating that the comment violated the station's harassment policy, named the specific term as offensive, and warned that further violations could result in termination.
On March 8, 2023, less than six months later, Bassett used a phrase attributed to Snoop Dogg on air: "fo shizzle, my ..." A Black co-anchor told her off-air that she had used the N-word. Bassett believed the phrase meant "for real, my friend." The station manager and general manager consulted with HR and in-house counsel. They determined the remark was derogatory and fired her.
Bassett filed a race discrimination charge with the EEOC and sued WLBT under Title VII. The Fifth Circuit affirmed the lower court's ruling in the employer's favor.
The Court's Reasoning: Process, Not Accuracy, Defeats Discrimination Claims
Bassett's core argument was that the station was wrong about the offensiveness of her language, and that her race motivated the termination. The Fifth Circuit rejected both claims.
On the question of whether the language was actually offensive, the court held that management does not have to reach the correct conclusion about conduct—only a non-discriminatory one. An employer "doesn't have to make proper decisions, only non-discriminatory ones," the court wrote. This is the critical holding: the employer's factual error, if there was one, does not convert a legitimate termination into discrimination.
Bassett also pointed to a remark from the general manager that "there's some things that Black people can say that White people can't say." The court noted that Bassett had quoted only part of the remark; the GM had concluded that the phrase should not have been said by any employee, regardless of race. The court also rejected her claim that the station privileged Black employees' interpretations of the phrase over white employees'. Multiple complaints came from both Black and white viewers and employees, the record showed.
The weight of the case turned on the documented warning from six months earlier and the deliberate consultation with HR and counsel before termination. That process, the court signaled, inoculates the employer against inference of discrimination.
What HR Needs to Lock Down in Conduct Policies
Specificity in warnings matters most. The written warning in this case named the policy violated, explained why the language was offensive (connecting it to historical context), and stated the consequence for future violations. That granularity survived a federal lawsuit. A generic warning—"Your conduct was unprofessional and will not be tolerated"—would not have withstood the same scrutiny.
Consult before you terminate. The station's decision to involve HR and in-house counsel before firing Bassett was noted by the court as evidence of a deliberate, good-faith process. If you act unilaterally or in haste, you lose that shield.
Document the complaints and the reasoning. The station documented numerous viewer and employee complaints, the policy violation, the prior warning, and the reasons (after consultation) for concluding the second incident was also offensive. That paper trail is what made the termination defensible. Verbal decisions, informal conversations, and post-hoc rationalizations will not survive discovery.
The ruling does not permit employers to ignore offensive language or to apply rules selectively by race. It does mean that if your conduct policy is written, the warning is documented, and the termination decision is made through a deliberate process, the fact that the underlying judgment was later questioned or even proven wrong will not convert the termination into illegal discrimination.