Category Archives: Race Discrimination

The “N-word,” the “Black Monkey Girl,” and the “Confident, African American Male”: Workplace Language and Hostile Environment Claims

It is one of the nightmare scenarios for any HR Department or in-house employment counsel: A white employee directing crude, vicious, racially charged slurs at an African-American employee. Perhaps the most inflammatory of such racial epithets is so toxic that it is typically no longer even spelled out in judicial opinions; it is simply the “n-word.” But employees do not limit themselves to that word. A recent case involved an African American employee whose co-worker helpfully translated what Spanish-speaking co-employees had been calling her: the “black monkey girl.” On the other hand, employees sometimes complain about language that does not appear insulting at all. One recent case included the allegation that the phrase “confident, African American male” helped create a hostile environment. So, when does offensive language in the workplace create a viable hostile environment claim?

From an HR perspective, insulting epithets, particularly based on race, gender, or other protected classes, are hurtful, damaging to employee morale, and (hopefully) prohibited by company policies.

From a legal standpoint, however, the impact of such statements is more nuanced. Although it is beyond obvious that no one should ever refer to a co-worker as the “black monkey girl,” the company involved in that case prevailed (in part) in the subsequent litigation. The legal framework of “hostile atmosphere” claims requires an analysis of factors including the following:

  • What actually was said?
  • Who said it, and under what circumstances?
  • How often were offensive remarks made in the workplace?
  • How did the company respond upon learning about the problem?

If the employer can demonstrate that the language, even if offensive, was not “severe and pervasive,” and that the company responded appropriately to employee complaints, the employer has an excellent chance to prevail against claims by the employee. Three recent decisions help illustrate this legal landscape:

In Barbara v. Here North America, LLC, the plaintiff employee was subjected to a supervisor’s use of the “n-word,” in addition to “other racially-charged language,” a sign reading “Colored” being hung above the plaintiff’s work station, and an ineffective response from management. Not surprisingly, the employee successfully staved off the employer’s motion for summary, even though there were statute of limitations problems with some of the claims.

The court applied the following legal standard for a hostile environment claim: (1) unwelcome conduct or comments; (2) harassment based on race (or other protected category); and (3) the harassment was “sufficiently severe or pervasive” so as to “alter the conditions of employment and create an abusive working environment.”

The court found that the conduct described above met the severe and pervasive standard and entitled the employee to a full trial of her claims. The employee was also entitled to proceed with claims that the damaging atmosphere impacted his performance, leading to his termination, and that the termination was a form of retaliation for his complaints about the racially hostile atmosphere.

By contrast, the employer prevailed, at least in part, in Paul v. Saltzman, Tanis, Pittel, Levin & Jacobson, Inc. Paul was a certified medical assistant whose Spanish co-workers referred to her as the “black monkey girl.” The employer, upon being informed of the situation, advised Paul to simply “let it go.” When she continued to complain, she was eventually terminated, in part because of her refusal to “let it go.”

Paul sued for both hostile environment and retaliatory discharge. The court noted that the determination of whether a hostile workplace atmosphere is sufficiently severe and pervasive is not “a mathematically precise test,” and that no single factor is determinative. The court found that the “few isolated instances” of offensive behavior here did not meet the test and dismissed the hostile atmosphere claim. However, the court did allow Paul the opportunity to amend her complaint, potentially reviving the hostile atmosphere case if she was able to provide more facts showing severe and pervasive harassment.

The court also recognized that the retaliatory discharge claim was viable. Given that one reason given by the employer for the discharge was the employee’s refusal to drop a complaint of racial harassment (based on a highly offensive, racially-charged epithet), it is certainly no surprise that the retaliatory discharge claim had sufficient merit to proceed.

Finally, in Yeboah-Kankam v. Prince William County School Board, plaintiff’s claims failed, in part because plaintiff had a lengthy and well-documented record of his own inappropriate conduct, and because the hostile atmosphere claim was based, in part, on the fact that a school district representative had referred to him as a “confident, African American male.” The court pointed out that this was not even offensive language and could not support the claim.

The takeaways from these recent cases include:

  • Offensive language is not only wrong; it is potentially the basis for a valid lawsuit. It should be prohibited by company policies and certainly never used by supervisors or management;
  • Not every complaint identifies truly offensive language. It is never OK to call an employee the “n-word” or the “black monkey girl.” But common sense suggests (and at least one court confirms) that “confident” is still a compliment, not an insult;
  • If instances of offensive conduct do arise, the company must assess how bad they are, how often they occurred, and how best to correct the problem. An aggressive and effective company response is often the best defense in cases of this nature;
  • By contrast, attempts to sweep the problem under the rug only make it worse. Regardless of what a Disney movie anthem might suggest, telling a complaining employee to “let it go” is a terrible idea, and firing her for failing to drop her complaint is even worse.

Quirky Question #287: “Cat’s Paw” Claims – How could an employer violate antidiscrimination laws, even though the decision-making manager has no discriminatory bias at all?

Question: We just went through a five-person layoff, and one of the individuals laid off (an African American) has hired a lawyer and is threatening to sue for racial discrimination. I have enormous confidence in the fairness of the individual manager making the layoff selections, and those selections were based on years of performance ratings.  However, the lawyer hired by our ex-employee says that doesn’t matter, because the ex-employee’s direct supervisor was racially biased.  He says that the bias of the direct supervisor taints the entire process and that the manager was merely a “cat’s paw.”  Let’s assume for a moment that the direct supervisor is a little rough around the edges.  Do we have a problem here, even though the manager is fair and unbiased?  And what the heck is a “cat’s paw” anyway? Answer→

EEOC Guidance On Use of Criminal History in Employment Decisions

When Is a Proscription on Convictions an Impermissible Predilection?  EEOC Issues New Guidance on the Use of Criminal History in Employment

Earlier this week, the United States Equal Employment Opportunity Commission (“EEOC”) issued updated Enforcement Guidance (“Guidance”) regarding the circumstances under which employers permissibly may, under Title VII of the Civil Rights Act of 1964 (“Title VII”), rely on arrest and conviction records in employment decisionmaking. See EEOC, Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (April 25, 2012), The Guidance, while clarifying the agency’s position on this issue, also portends additional burdens for employers who need or want to consider applicants’ and employees’ criminal records. Answer→

Discrimination on the Basis of Color, Quirky Question # 134

Quirky Question # 134:

My company is planning a reduction in our workforce, which largely consists of African-Americans.  I understand that when a company conducts a mass layoff, it should make sure the layoff does not disproportionately affect older workers, women or men, or employees of a particular race, or else the company risks being accused of discrimination.  But doesn’t the law also protect employees from discrimination based on color?  If so, do we also need to worry about letting go a disproportionate number of “dark-skinned” or “light-skinned” employees?  How would we even go about measuring this?  I know our African-American workforce consists of a broad spectrum of skin tones.

Ricci v. DeStefano, Supreme Court Ruling In Adverse Impact Case

Ricci v. DeStefano, Supreme Court Holds Employer Liable for Trying to Avoid Claims of Adverse Impact Discrimination

On June 29, the United States Supreme Court issued its highly-anticipated and highly-divisive decision in the “white firefighters case,” Ricci v. DeStefano, 557 U.S. __ (2009). This 5-4 decision may have significant implications for both “disparate impact” and “disparate treatment” discrimination claims.

Disparate-treatment claims present the traditional case of intentional discrimination. Disparate-impact claims attack a neutral policy or practice that has a disproportionately negative impact on the basis of race, gender, or some other statutorily-protected characteristic. Notably, disparate-impact claims do not require proof of an intent to discriminate. In Ricci, the Supreme Court held that actions influenced by race or some other protected characteristic, even if taken in a good-faith effort to avoid possible disparate-impact claims, will subject an employer to claims for disparate-treatment discrimination except in very narrow circumstances. Answer→

Associational Discrimination, Quirky Question # 87

Quirky Question # 87:

Some time ago, you wrote an analysis about discrimination on the basis of inter-racial marriage.  We are confronting a slightly different problem.  Several of our Caucasian employees have complained that they have been discriminated against because of their friendships with their African American co-workers.  These individuals are not married to the African Americans and they have not even said they spend time with them away from work.  But, they are claiming discrimination nonetheless.  Similarly, they have complained that they are offended by some of the language used by some of their Caucasian co-workers with respect to minority employees who work at our company.  Do they have a potential claim?  Does Title VII reach claims brought by Caucasians who are complaining about treatment of minorities? Answer→

Discrimination Based on Inter-Racial Marriage, Quirky Question # 77

Quirky Question # 77:

One of our employees, who is Caucasian, recently complained that his manager has been treating him unfairly in a variety of ways.  He claims that his manager is discriminating against him because he is married to an African American woman.  Putting aside the issue of whether the manager actually is treating him unfairly, does Title VII even encompass discrimination on the basis of inter-racial marriage? Answer→

California Oddities, Quirky Question # 75

Quirky Question # 75:

We are a California employer and were just hit with a lawsuit by a former employee for acts that supposedly took place almost three years ago.  Our former employee alleges that in January 2006, his supervisor asked him to fire three Asian-Americans who work in an otherwise all Caucasian department.  The former employee alleges that he refused to follow his supervisor’s directive and did not fire anyone.  (Incidentally, this was the same supervisor who hired the employee who now is suing us.)

Our former employee also contends that from January 2006 through January 2008, he received very poor performance evaluations from his supervisor, which he attributes to his unwillingness to fire the three Asian-American employees.  Despite his “belief” about the supposed link between his performance reviews and his refusal to fire anyone, he never complained to our Human Resources Department or anyone on our management team.  He claims he had conversations about his supervisor’s behavior with one of his subordinates, an Assistant Manager who reported to him.

In February 2008, he quit without notice.  He immediately filed an administrative complaint with the Department of Fair Employment and Housing (DFEH), alleging race and age discrimination.  The DFEH conducted an investigation which ended in December 2008, and issued a right to sue letter soon thereafter.  We just were served with the Complaint, some three years after the primary incident on which his lawsuit is based.

First, can he file a race discrimination claim even though he is not Asian?  Second isn’t his lawsuit time-barred?  (I thought these types of lawsuits were limited to a one year statute of limitations.)  Finally, given that the employee did not take advantage of our very extensive internal complaint procedures (designed to address precisely these kinds of issues), doesn’t his failure to utilize this internal complaint process bar his claims? Answer→

Offensive Music Lyrics as Title VII Violation, Quirky Question # 73

Quirky Question # 73:

We have a work environment where employees have cubicles that are approximately shoulder height.  Some employees have radios or CD players in their cubicles.  We generally don’t interfere with their musical selections, recognizing that people have different musical tastes.  (We do ask our employees to keep the volume down so they don’t bother their co-workers.)  We recently received a complaint from one of our African American employees.  He was upset that some of the workers occupying nearby cubicles play rap music with lyrics he finds offensive.  Is this something we need to worry about?  We don’t want to become the thought police. Answer→

Quirky Question # 29, Maintaining Electronic Records

Quirky Question # 29:

Our company has offices in California.  This year we want to improve our document retention practices.  We’ve decided to maintain electronic records of personnel files.  Can we do this in California?  We were told that California law requires the records to be available at the job site.  If this is true, can we switch to an electronic database in California? Answer→