Thursday, January 6, 2011

Federal court takes on the word “nigger” in a reverse race discrimination case


417T65SZB6L._OU01_AA240_SH20_ The word “nigger” has been discussed a lot in the media this week, with the announced sanitization of Huckleberry Finn. (Are Roots and To Kill a Mockingbird next? But I digress.) In Burlington v. News Corp. (12/28/10), a Philadelphia federal judge has ordered that a jury must decide whether it is acceptable for a black employee, but not a white employee, to use that word in the workplace. The opinion also contains a lengthy narrative (excerpted below) discussing the larger implications of the differential use of the word between white America and black America.

This case involves the firing of a white television news anchor over his non-pejorative, context-appropriate, use of the word “nigger” during a newsroom meeting. Thomas Burlington, who is white, claims race discrimination because the station did not discipline, let alone fire, three black employees who used the same word in similar meetings in similar contexts. The court agreed that Burlington’s different treatment justifies a jury trial on the issue:

Plaintiff’s use of the word elicited a severely negative reaction, brought the meeting to a close before he could explain himself, and was followed by his immediate suspension, while Jervay’s use of the word elicited only Defendants’ defense of his actions. Plaintiff is white. Jervay is African American. Management’s inability to explain why Jervay was allowed to use the word while Plaintiff was not permits the inference that their races influenced the decision, and that a similarly situated African American employee was treated more favorably than Plaintiff under similar circumstances.

The court also took on society’s conventional use of the controversial word:

Justice Holmes observed that “[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” This is certainly so with this particular word. Merriam-Webster notes in the usage section of its definition of the word that “[i]ts use by and among blacks is not always intended or taken as offensive, but … it is otherwise a word expressive of racial hatred and bigotry.” … Professor Kennedy, an African American, made the observation that

many people, white and black alike, disapprove of a white person saying “nigger” under virtually any circumstance. “When we call each other ‘nigger’ it means no harm,” [rapper] Ice Cube remarks. “But if a white person uses it, it’s something different, it's a racist word.” Professor Michael Eric Dyson likewise asserts that whites must know and stay in their racial place when it comes to saying “nigger.” He writes that “most white folk attracted to black culture know better than to cross a line drawn in the sand of racial history. Nigger has never been cool when spit from white lips.” …

When viewed in its historical context, one can see how people in general, and African Americans in particular, might react differently when a white person uses the word than if an African American uses it.

Nevertheless, we are unable to conclude that this is a justifiable reason for permitting the Station to draw race-based distinctions between employees. It is no answer to say that we are interpreting Title VII in accord with prevailing social norms. Title VII was enacted to counter social norms that supported widespread discrimination against African Americans…. To conclude that the Station may act in accordance with the social norm that it is permissible for African Americans to use the word but not whites would require a determination that this is a “good” race-based social norm that justifies a departure from the text of Title VII.

“Nigger” is one of the English language’s most volatile words. Few others spark as much debate or as much rancor. We should all be able to agree that it has no place in the workplace. Yet, as this case illustrates, Title VII does not allow for double standards. If you intend to punish its use by white employees, you cannot condone its use by black employees.

Two postscripts. First, if anyone is offended by my use of the word “nigger,” consider that the Burlington opinion uses it 21 times, while only using the now-common replacement “n-word” only three. Employment law is often dirty and offensive; I’m merely reporting fact.

Second, so we can analyze how far our society’s race relations have traveled (at least over the last 35 years), below is the classic Word Association skit from Saturday Nigh Live, circa 1975, featuring Chevy Chase and Richard Pryor.

 


Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

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