Saying the n word at work

Sorry Chris Rock and Dave Chapelle, but a federal court in New York found a manager’s use of the N-word among blacks in the workplace was sufficiently hostile and discriminatory to warrant damages. The jury in this case awarded $250,000 in compensatory damages to a black employment agency worker, Brandi Johnson, after being subject to an N-word-full tirade by her black boss, Rob Carmona.

But how does the N-word create a hostile work environment?

Liability for Hostile Work Environment

A boss can be sued for a hostile work environment when his or her harassment — including unwelcome comments or conduct based on sex, race, age, disability, or other legally protected characteristics — unreasonably interferes with an employee’s work performance or creates an intimidating, hostile, or offensive work environment.

Typical conduct that can create a hostile work environment includes offensive jokes, slurs, touching, threats, ridicule and insults.

General rudeness isn’t enough to sue for a hostile work environment. The conduct must be severe and/or pervasive enough that a reasonable person would consider intimidating or abusive such that it impacts his or her desire or ability to work.

Here, the N-word-laced rant was about inappropriate workplace attire and unprofessional behavior, reports The Associated Press. After the remarks, the employee fled to the bathroom and cried for 45 minutes.

Generally, one single instance cannot trigger liability for a hostile work environment. In this case, the jury took into account Johnson’s previously disregarded complaints about Carmona’s verbal abuse, reports the AP.

N-Word as Objectively Offensive

To trigger liability for a hostile work environment, the conduct must be objectively offensive. Here, Carmona boss argued that the N-word has «multiple contexts» in the black and Latino communities, sometimes indicating anger, sometimes love.

Unfortunately for Carmona, his aggressive N-word-laced tough love was objectively offensive enough to be considered discriminatory and abusive. Carmona was Johnson’s superior and directly addressed her with a racial slur that created a work environment that was directly repugnant to anti-discrimination laws and policies.

For that reason, Johnson was able to successfully sue her manager for injuries.

Related Resources:

• ‘N-word’ on trial: Federal jury says it’s not a term of endearment (The Washington Times)
• Can You Sue for Insults on a Receipt? (FindLaw’s Injured)
• Customer Sues for Racial Slur on CVS Receipt (FindLaw’s Law and Daily Life)
• Lesson: Don’t Call Regular Customers Racial Slurs (FindLaw’s Free Enterprise)

Every so often, I receive a Google Alert about some knucklehead who writes something inappropriate — usually a racial slur — on a restaurant receipt. Often, the knucklehead tries to explain her or his actions away as a joke.

That’s the setup for the most recent racist receipt about which I read recently. And the company’s ham-handed response is what makes this the first blog post of the week.

A victim’s complaint falls on deaf ears.

Zayda Rivera reporting here at BET has news of a restaurant employee who typed the N-word on a Black co-worker’s order ticket. Ms. Rivera’s article includes an Instagram post from the victim in which he says he alerted management right away. However, according to the victim, management rationalizes the actions as mere joking around.

Ms. Rivera reports that the receipt incident happened on October 22, 2019, with no real action taken until several weeks.

That is, until, the story ended up making headlines.

Then, BuzzFeed News and The Arizona Star reported the Oct. 22 incident. And wouldn’t you know it, within a day, the business issued a public apology. However, the business said it had issued verbal and written warnings to the employees involved and confirmed that there were no plans to fire them.

But, that changed quickly.

Salvador Hernandez at BuzzFeed News reports here that the restaurant owners then met with leaders in the local African American community in an experience they called “eye-opening.” And, on November 14, 2019, the pink slip that should have been issued much earlier was finally delivered.

Finally, the employee is fired.

Ownership announced in an Instagram post that it “came to a realization” that “zero tolerance against discrimination [requires] strong public action when discrimination occurs.” Consequently, it fired the employee who, in what he described as a joke, substituted a racial slur for his own name when putting in his own lunch order.

What went wrong?

Should the company have fired the ‘joker’ right away once it learned about the incident? Likely, I would’ve recommended that the company terminate the employee. However, the law doesn’t require it. And, it is possible that other reasonable steps could have been taken to end the complained-of behavior.

But, the big problem here — other than the receipt itself — is management’s response to the initial complaint. A manager’s job in this situation is not to offer excuses but rather to take these types of incidents as seriously as you or I would.

Further, it does not matter whether the employee who typed the receipt was joking. Instead, it’s the impact that her or his actions have on the victim (or a reasonable person standing in the victim’s shoes.) Does this type of behavior interfere with the victim’s working conditions? That is the legal yardstick by which incidents like these are measured.

So, scroll back up to the top of this post and remind your managers that it’s never a joke when employees act this way at work.

Even if they say that they were just joking.

On the weekend, Netflix’s US communications chief Jonathan Friedland was fired from the company for “descriptive use of the N-word” in the workplace. In an internal memo to staff, CEO Reed Hastings explained that Friedland had been let go for exhibiting “unacceptably low racial awareness and sensitivity.”

Meanwhile, here in Australia, much has been made of “the right to be a bigot”. This got us wondering – is it legal to terminate an Australian employee for using a racial epithet? Or would they have a case for unfair dismissal? Let’s find out.

First some background for those unfamiliar with the Netflix story. On June 23, Netflix communications chief Jonathan Friedland, who had been with the company for seven years, was abruptly fired following a string of controversies involving the use of the “N-word”.

Significantly, Friedland used the word not once, but twice and demonstrated to employees that “he didn’t care and didn’t accept accountability”. Rather than rehash the whole incident and fallout here, we’ll let Hastings’ company memo speak for itself:

The first incident was several months ago in a PR meeting about sensitive words. Several people afterwards told him how inappropriate and hurtful his use of the N-word was, and Jonathan apologised to those that had been in the meeting. We hoped this was an awful anomaly never to be repeated.

Three months later he spoke to a meeting of our Black Employees @ Netflix group and did not bring it up, which was understood by many in the meeting to mean he didn’t care and didn’t accept accountability for his words.

The second incident, which I only heard about this week, was a few days after the first incident; this time Jonathan said the N-word again to two of our Black employees in HR who were trying to help him deal with the original offense. The second incident confirmed a deep lack of understanding, and convinced me to let Jonathan go now.

For his part, Friedland acknowledged that he had made a mistake, albeit somewhat begrudgingly:

I’m leaving Netflix after seven years. Leaders have to be beyond reproach in the example we set and unfortunately I fell short of that standard when I was insensitive in speaking to my team about words that offend in comedy.

— jonathan friedland (@jsf33) June 22, 2018

Now, it’s worth noting that Friedland did not use the word to directly attack another employee. Nor was he making a racist joke or describing a group of people with a racist slur. Rather, he was discussing words that offend in comedy and gave the n-word as an example. This is important, as context can determine what disciplinary action will be taken in an Australian workplace (if any).

Currently, most of Australia’s anti-discrimination workplace laws center around employer behaviors, such as refusing to hire someone based on their race or deliberately withholding training and promotion opportunities.

However, the law does provide some limited protections to those on the receiving end of racial slurs. Section 18C of the Racial Discrimination Act states the following:

It is unlawful for a person to do an act, otherwise than in private, if:
[clear]
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
[clear]
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

At the same time, the Act attempts to protect everybody’s right to communicate freely. Statements that are made “reasonably and in good faith” are not unlawful.

In this context, Friedland’s comments likely wouldn’t qualify as racial discrimination or vilification. It should also be noted that unlawful acts are not actually criminal – it’s up to the aggrieved party to pursue damages in court. (By contrast, criminal acts are pursued by the police and can result in jail time.)

With that said, most workplaces have their own policies that forbid the use of racial slurs, for any reason. As legal services business LegalVision explains on its blog:

[As an employer], you should make it clear at the outset that you will not tolerate racist behaviour in your workplace, and try to encourage a culture amongst your employees that promotes inclusion.

There are several policies that your business can implement setting out what you expect regarding employee behaviour. These documents should also describe what action you can take against employees that engage in this behaviour such as warnings or even dismissal.

In other words, using the ‘n-word’ or similar racial slurs is not strictly illegal in the Australian workplace. However, you could still be fired for violating your employment contract, compromising your employer’s inclusion policies or otherwise damaging their reputation.

Did you just catch yourself wondering if something was legal or not? Let us know and we may be able to answer it in our next Is It Legal? feature.

The Supreme Court has been asked to decide an issue that has sowed confusion among the various appellate courts around the country: can a single workplace use of the N-word constitute a hostile work environment under Title VII of the 1964 Civil Rights Act?

This legal question arises during a long overdue reckoning about how to address systemic racial discrimination in this country. Indeed, an employee in one case, Collier v. Dallas County Hospital District, has specifically requested that the Supreme Court decide this issue.

The N-word “sums up . . . all the bitter years of insult and struggle in America, [is] pure anathema to African-Americans, and [is] probably the most offensive word in English.” These words were spoken by Supreme Court Justice Brett Kavanaugh in a case he decided years ago while still serving on the D.C. Circuit Court of Appeals. The N-word slur is a “singularly odious epithet” that “reminds [Black Americans] of an unshakeable ‘otherness,’ an outsider status in the larger social, economic, and political dynamics of a given society.” Michele Goodwin, N***** and the Construction of Citizenship, 76 Temp. L. Rev. 129, 141 (2003).

Yet the different federal appellate courts are divided on whether the single use of a reprehensible racial epithet, such as the N-word, is sufficiently severe to violate Title VII. This is why it is important for the Supreme Court to address the issue head on and provide clarity for the lower courts.

Background About The Collier Case

The plaintiff/employee, Robert Collier, filed a petition with the Supreme Court earlier this year asking it to review a decision by the United States Court of Appeals for the Fifth Circuit. The summary of facts below are taken from the brief filed with the Supreme Court on Collier’s behalf.

Collier worked for the Dallas County Hospital District (Parkland) from 2009 to 2016. During this time, he says he repeatedly complained to Parkland about “racially hostile graffiti” including the N-word etched into the wall of an elevator that he and other employees regularly used. Despite Collier’s reporting the graffiti to human resources, he alleges that it remained in the elevator for at least six months. Collier further complained to human resources about large swastikas that were painted on the wall of a storage room, which he maintains were not removed for nearly two years. Finally, Collier asserts that he objected that white employees called him and other Black workers “boy.”

The Fifth Circuit ruled that use of the N-word was not severe enough to create a hostile work environment in violation of Title VII, and Collier is now attempting to appeal this decision to the Supreme Court.

The Legal Framework For A Hostile Work Environment Claim

 To prove a hostile work environment under Title VII, an employee must show they were subjected to harassment that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Later Supreme Court decisions on the “severe or pervasive” standard have held that “mere utterance of an … epithet which engenders offensive feelings in an employee” is not enough. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). But then the Supreme Court subsequently noted that an isolated, albeit serious, incident could be severe enough to establish a hostile work environment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). As a result, the Supreme Court has never clarified whether saying the N-word at work is simply a “mere utterance” or instead if its use can amount to a hostile work environment.

A Contradictory Patchwork Of Appellate Decisions

The Supreme Court’s muddled approach about what actions may be sufficiently severe to create a hostile work environment has resulted in a deep split among the various federal circuit courts of appeal. In two of the thirteen federal courts of appeal, a single use of the N-word at work can establish a hostile work environment claim. But in at least five other federal courts of appeal (the 5th, 6th, 7th, 8th, and 10th Circuits), the courts routinely find that a hostile work environment cannot be proven by a single use of the N-word.

Put another way, appellate courts covering 23 states regularly rule that a jury of an employee’s peers is not even allowed to hear evidence about whether a single use of the N-word could constitute a hostile work environment. In theory, if an employee’s senior manager used the N-word in a workplace meeting but it happened only one time, then, according to the appellate courts covering almost half of this country a jury would not be permitted to decide if this amounts to a hostile work environment. All of this helps to show why the Collier appeal is an important case to watch and why Supreme Court guidance on this issue is needed.

The Supreme Court has been asked to decide an issue that has sowed confusion among the various appellate courts around the country: can a single workplace use of the N-word constitute a hostile work environment under Title VII of the 1964 Civil Rights Act?

This legal question arises during a long overdue reckoning about how to address systemic racial discrimination in this country. Indeed, an employee in one case, Collier v. Dallas County Hospital District, has specifically requested that the Supreme Court decide this issue.

The N-word “sums up . . . all the bitter years of insult and struggle in America, [is] pure anathema to African-Americans, and [is] probably the most offensive word in English.” These words were spoken by Supreme Court Justice Brett Kavanaugh in a case he decided years ago while still serving on the D.C. Circuit Court of Appeals. The N-word slur is a “singularly odious epithet” that “reminds [Black Americans] of an unshakeable ‘otherness,’ an outsider status in the larger social, economic, and political dynamics of a given society.” Michele Goodwin, N***** and the Construction of Citizenship, 76 Temp. L. Rev. 129, 141 (2003).

Yet the different federal appellate courts are divided on whether the single use of a reprehensible racial epithet, such as the N-word, is sufficiently severe to violate Title VII. This is why it is important for the Supreme Court to address the issue head on and provide clarity for the lower courts.

Background About The Collier Case

The plaintiff/employee, Robert Collier, filed a petition with the Supreme Court earlier this year asking it to review a decision by the United States Court of Appeals for the Fifth Circuit. The summary of facts below are taken from the brief filed with the Supreme Court on Collier’s behalf.

Collier worked for the Dallas County Hospital District (Parkland) from 2009 to 2016. During this time, he says he repeatedly complained to Parkland about “racially hostile graffiti” including the N-word etched into the wall of an elevator that he and other employees regularly used. Despite Collier’s reporting the graffiti to human resources, he alleges that it remained in the elevator for at least six months. Collier further complained to human resources about large swastikas that were painted on the wall of a storage room, which he maintains were not removed for nearly two years. Finally, Collier asserts that he objected that white employees called him and other Black workers “boy.”

The Fifth Circuit ruled that use of the N-word was not severe enough to create a hostile work environment in violation of Title VII, and Collier is now attempting to appeal this decision to the Supreme Court.

The Legal Framework For A Hostile Work Environment Claim

To prove a hostile work environment under Title VII, an employee must show they were subjected to harassment that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Later Supreme Court decisions on the “severe or pervasive” standard have held that “mere utterance of an … epithet which engenders offensive feelings in an employee” is not enough. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). But then the Supreme Court subsequently noted that an isolated, albeit serious, incident could be severe enough to establish a hostile work environment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). As a result, the Supreme Court has never clarified whether saying the N-word at work is simply a “mere utterance” or instead if its use can amount to a hostile work environment.

A Contradictory Patchwork Of Appellate Decisions

The Supreme Court’s muddled approach about what actions may be sufficiently severe to create a hostile work environment has resulted in a deep split among the various federal circuit courts of appeal. In two of the thirteen federal courts of appeal, a single use of the N-word at work can establish a hostile work environment claim. But in at least five other federal courts of appeal (the 5th, 6th, 7th, 8th, and 10th Circuits), the courts routinely find that a hostile work environment cannot be proven by a single use of the N-word.

Put another way, appellate courts covering 23 states regularly rule that a jury of an employee’s peers is not even allowed to hear evidence about whether a single use of the N-word could constitute a hostile work environment. In theory, if an employee’s senior manager used the N-word in a workplace meeting but it happened only one time, then, according to the appellate courts covering almost half of this country a jury would not be permitted to decide if this amounts to a hostile work environment. All of this helps to show why the Collier appeal is an important case to watch and why Supreme Court guidance on this issue is needed.