The Boundaries of the N-Word in Employment

While reading Jottings By An Employer’s Lawyer (which by the way is a very good US blawg for those who are interested), I found out about a case where news anchor Tom Burlington at Fox 29 in Philadelphia was fired for using the n-word during a staff meeting at which reporters and producers were discussing reporter Robin Taylor’s story about the symbolic burial of the word by the Philadelphia Youth Council of the NAACP. To put it simply, according to the Philadelphia Inquirer:

The dispute began after Taylor, who is white, used the “n” word during the 2007 staff meeting. She said participants at the burial had said the full word “at least a hundred times or more,” according to court records.

“Does this mean we can finally say the word n-?” Burlington asked colleagues, according to depositions.

Nicole Wolfe, a producer and one of the three African American employees among the nine people at the meeting, exclaimed: “I can’t believe you just said that!”

Burlington told Taylor that, although he did not necessarily expect her to use the word in her story, he thought that doing so gave the story more credence.

Burlington says he used the word only once and approached several attendees after the meeting to explain himself. The Daily News account said he had used the word more than a dozen times.

What caught my attention is that the employee claims that black employees were not disciplined for their constant use of the n-word in the workplace, so why should he be fired?

That is a very good question, and again a sign of the times. Peter Thompson’s Maine Employment Lawyer’s Blog posed the question Can an employer fire a white employee for using the n-word if it lets black employees say it?

The employee filed a lawsuit claiming that he was discriminated against because of his race, was subjected to a hostile work environment, and that the defendants retaliated against him. Specifically, he alleges that News Corporation, Fox Television Stations, Inc., and Fox Television Stations of Philadelphia, Inc. (his employers) violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq., 28 U.S.C. § 1981, and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 951 et seq. This law outlaws treating employees of one race differently from another race.

The employer filed a motion for summary judgment. US District Judge R. Barclay Surrick had to ponder on this complex legal issue, and ponder he did.

The court had to decide if an employer can be held liable under Title VII for enforcing or condoning the social norm that it is acceptable for African Americans to say “nigger” but not whites. Is there some justification for treating the white employee who says the word differently from the African-American employee who says the word?

During the proceedings, Fox 29 argued that the employee’s comparison between his use of the n-word and black employees’ use ignores the fact that his use of the n-word offended some black employees, whereas no one took offense when the black employees used the n-word.

The court transcript noted

Historically, African Americans’ use of the word has been ironic, satirical, or even affectionate. … Too often, however, the word has been used by whites as a tool to belittle, oppress, or dehumanize African Americans. 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. See McDonnell Douglas, 411 U.S. at 800 (stating that the purpose of Title VII was “to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens”). 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. Neither the text of Title VII, the legislative history, nor the case law permits such a departure from Title VII’s command that employers refrain from “discriminat[ing] against any individual … because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1).

On December 23, 2010, Judge Surrick ruled that the fired employee’s lawsuit against the station, claiming a double standard and alleging that he was the victim of racial discrimination, may go to trial. He found that a reasonable jury could return a judgment in the plaintiff’s favour under a mixed-motive analysis.

This case presents unique issues regarding an employer’s liability under Title VII for cultural assumptions about a word that is considered by many to be the most offensive in the English language. Plaintiff portrays himself as a victim of political correctness run amok, while Defendants portray themselves as employers who made the only choice they could in response to an employee who repeatedly uttered “the most noxious racial epithet in the contemporary American lexicon,” Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1034 (9th Cir. 1998), resulting in problems in the workplace and significant adverse publicity. Whether Plaintiff was a victim of discrimination or his own poor judgment is for a jury to decide.

However, Surrick denied the employee’s claim of a hostile work environment, the court stated

We cannot agree that the behaviour recited by Plaintiff constitutes behaviour that is so severe or so pervasive that it gave rise to a claim for hostile work environment. Indeed, these are precisely the kind of “isolated incidents” and “offhand comments” that the Supreme Court has warned “will not amount to discriminatory changes in the terms and conditions of employment.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (quoting Faragher, 524 U.S. at 788).

The trial is set to begin on January 18, 2011.

According to Wikipedia:

Black hearers often react differently to the term when it is used by white speakers and by black speakers. In the former case, it is regularly understood as an insult; in the latter, it may carry notes of in-group disparagement, or even be understood as neutral or affectionate, a possible instance of reappropriation.

Among the black community, the slur nigger is sometimes rendered as nigga, a pronunciation emphasizing the unique intra-racial dialect of black people, a self-referential pronoun in African-American Vernacular English usage popularized by the rap and hip-hop music cultures. In these situations, it is used as in-group lexicon and speech, wherein it is not necessarily derogatory.

According to Arthur K. Spears (Diverse Issues in Higher Education, 2006):

In many African-American neighborhoods, nigga is simply the most common term used to refer to any male, of any race or ethnicity. Increasingly, the term has been applied to any person, male or female. “Where y’all niggas goin?” is said with no self-consciousness or animosity to a group of women, for the routine purpose of obtaining information. The point: Nigga is evaluatively neutral in terms of its inherent meaning; it may express positive, neutral or negative attitudes;

While Kevin Cato observes:

For instance, a show on Black Entertainment Television, a cable network aimed at a black audience, described the word nigger as a “term of endearment.” “In the African-American community, the word nigga (not nigger) brings out feelings of pride”. Here the word evokes a sense of community and oneness among black people. Many teens I interviewed felt that the word had no power when used amongst friends, but when used among white people the word took on a completely different meaning. In fact, comedian Alex Thomas on BET stated, “I still better not hear no white boy say that to me … I hear a white boy say that to me, it means ‘White boy, you gonna get your ass beat.”

While racism is no longer nearly as prevalent as most people seem to think, it isn’t dead. Have we become desensitized to racism and are we forgetting the past? In the 1800s and 1900s, a person using the word nigger was saying that the subject was of lesser value due to his or her colour. The present case demonstrates that the word still carries that meaning. At least one black employee at the television station was offended that a white employee would use the n-word and suggest—even facetiously—that it was appropriate for non-black persons to say it. But why shouldn’t it be? Or why should it be appropriate for anyone (black, white or whatever) to use it? What sort of justification could the employer possibly offer?

Moreover, what message are we sending by allowing this norm to continue?

It is clearly discriminatory that a white person should be fired for doing something for which a black person never faces the slightest discipline. In fact, this is one of the most persistent and divisive double standards of our time, and it will be fascinating to see how the case plays out in the courts, in the media and in the court of public opinion. We as a society have given the n-word its power to offend, and as long as we continue to accept this double standard, the word will maintain its terrible hold on us. In many ways, that hold prevents rational discussion on the state of racism today.

Because today’s society faces such conflicting messages, it is especially important for younger generations of Americans (and Canadians—let’s not forget the recent cross-burning in Nova Scotia) to be educated on the full history of black people in America. They need to be educated and understand the history behind the derogatory usage of the word nigger.

A black or white or any person calling me nigger under any circumstances would greatly offend me, and it is unacceptable to use it in the workplace or anywhere in the 21st century. The term is racially offensive regardless of the race of those who use it. (At the same time, when it comes to historical documents, literature and in some cases other forms of artistic license, it only perpetuates the power of the n-word when we attempt to sanitize these things by replacing offensive words with more currently acceptable ones.)

This case has an added—and possibly equally important—aspect, which I hope doesn’t get lost in the hype: should a news organization actively censor its staff in this way? The purpose of the media is to speak truth to power, to stand up for free speech, not to stifle it. As in the 2010 case of reporter Octavia Nasr who was fired for expressing an unpopular view on Twitter, now Tom Burlington has been fired for saying a single word—in a private meeting! What does it say about the state of the media that it is willing to remove reporters at the slightest whiff of controversy, based on the threat that someone was offended? One could easily argue that the purpose of the media is to offend, to stoke the fire of controversy, to tell it like it is. The media should not be afraid to say what needs to be said.