Thursday, December 6, 2007

Don Imus case illustrates the difficulty of dealing with language in the workplace

There's been a lot of ink spilled this week in both the print media and the blogosphere about the return of Don Imus to the airwaves. (See Who’s the language police for Don Imus? and Imus Is Back, Chastened but Still Proudly Obnoxious). Recall that CBS Radio and MSNBC fired Imus in April after a firestorm erupted from his calling Rutgers women's basketball players "nappy-headed hos." In a post on The Word on Employment Law, John Phillips suggests most HR professionals and employment lawyers would agree with Imus's termination, and that often such comments by senior management and executives are overlooked because "money talks." That argument ignores CBS's hypocrisy in firing Imus over the type of statement that made him such a valuable commodity in the first place. Imus's popularity, and his ability to make millions of dollars for his employers, stems from his controversial nature and his propensity to make comments such as "nappy-headed hos." In fact, he has said much worse over the years, and, once he feels safe in his new job, will probably do so again. That is why he has a job in the first place.

It's difficult to draw any generalized employment law lessons from the Don Imus case because his case is so unique, just as it is difficult to draw any lessons on collective bargaining from the Writers Guild strike. Suffice it to say that language in contextual - it always has been and it always will be. In most contexts and most workplaces, "nappy-headed hos" should not be tolerated, and should result in an investigation, appropriate discipline, and some diversity and sensitivity training. These obligations exist whether an employee complains or not, as supervisors and managers have an affirmative duty to stamp out offensive conduct and the use of offensive language when they come across it or learn of it. The best lesson to draw is simply that companies act at their own peril by condoning or ignoring the use of offensive language in the workplace.

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