Tuesday, December 13, 2022

B-i-t-c-h spells dismissal

We're a team, we need to work together. Maybe we need to have a department meeting where we workshop with each other and really get to know each other. There's going to be days where you're going to be a B-I-T-C-H and there's going to be days where [the female servers] [are] going to be anxious and flip out and you need to be able to calm them down and get them what they need and not taking things personally so that they don't reflect of an image of you that may not be fully accurate.

That's what Tina Braunstein, a bartender working at The Plaza Hotel, claims one of her supervisors, Martin Mariano, told her during her 60-day review. When the hotel terminated her employment shortly thereafter and during her probationary period, she pointed to Mariano's spelling of "b-i-t-c-h" as evidence of his sexually discriminatory motive.

The 2nd Circuit disagreed.

Use of the word "bitch," by itself, does not automatically command an inference of gender-based hostility.… Here, the word was used as part of a larger conversation … about the importance of teamwork, Braunstein's communications issues with staff members, and methods to ameliorate ill feelings that had developed. It is clear on this evidence that Mariano was not expressing disdain or animus against women. He was merely telling one woman how aspects of her behavior affected her job performance. In this context, the word did not give rise to an inference of gender hostility.

As this case illustrates, there's a big distinction between saying certain words to someone as compared to about someone. Sometimes a swear word is just a swear word, and not evidence of discriminatory animus. We can all strive to do better with the words we choose to use to communicate with our employees, and employers should communicate their expectations of their employees in this regard. Yet, just because we may choose saltier language from time to time doesn't mean we harbor an intent to discriminate, even if that word can, in certain circumstances, offend.