Direct evidence consists of facts that, “if believed, require[] the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.” In other words, when direct evidence is provided, no inferences are needed in order to conclude that racial discrimination is afoot. …
A finding of racial discrimination based on these comments, moreover, would require us to make inferences. First, we would have to infer that Cochran’s alleged use of the n-word with respect to an urelated employee meant that his decision to demote Tennial was due to a similar racial animus. We would also be required to infer that Harm’s reference to Tennial’s coworkers as “boys” meant that his animus trickled down and influenced the individual decisions of Cochran and Slabaugh to initiate Tennial’s MPIP and demotion process.
So, this employer won, and avoided liability for a manager’s alleged use of the N-word. Just because something is legally defensible, however, doesn’t make it right. Merely because an employer can win a case for a stray racial epithet does not mean that any employer should tolerate this language. If I’m this employer (or the lawyer advising this employer), this manager would have been terminated upon an investigation reasonably confirming the misconduct.
I reach this conclusion for two reasons.
First, it’s the morally correct position. If someone uses the N-word to describe African Americans, even once, that person is a bigot, and bigots have no place in my workplace.
Secondly, if I, as the company’s lawyer, need to defend to a judge or jury my client’s actions, I need to able to argue that one stray comment doesn’t violate Title VII and, more importantly, that my client doesn’t tolerate such bigotry. Not firing the N-bomb utterer is nothing short of condoning the racism, and, if you’re condoning racism, you’re no better than the alleged racist.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
I totally agree with Jon’s moral stance that bigotry should not be tolerated. However, the position that the manager ‘ would have been terminated upon an investigation reasonably confirming the misconduct” could put the organization at risk of been sued by the said manager. Just as in the example case the requirement for direct evidence remains. Furthermore, there are a number of alternate strategies that organizations can adopt that could address or minimize this type of behavior arising.
“If someone uses the N-word to describe African Americans, even once, that person is a bigot, and bigots have no place in my workplace” has to be one of the most moronic statements among many that plague the world of HR and the workplace these days. I am old enough to remember when the N-word was in common use and was such a common and familiar word that it almost lost its derogatory meaning; it was simply a descriptive term, in many ways akin to people using “coke” for every soft drink in existence, or “frigidaire” for refrigerator. I also recall that many of those who occasionally used the N-word would never use it to directly insult or belittle a black person; further, often they were people who went out of their way to help those in need, many of whom were black in the small town where I was raised. Was their generosity made worthless — were they automatically and fatally-flawed bigots — because they referred to the area where blacks lived as “N*****town” or because they used the N-word a single time as shorthand for a racial group? I think not.
Who among us has never, ever commented on some physical feature or personality quirk of another person – their weight, their height, their big ears, their odd voice, their weird behavior? Who among us has never used a physical or personality characteristic to describe another human being – skinny, tall, fat, ugly as homemade soap, queer as a two-dollar bill, dumb as a brick, goofy as a blonde, older than the hills, a moron? Does that mean the we automatically hate and discriminate against the skinny, tall, fat, ugly, gay, dumb, blonde, the elderly and morons? Of course not (okay, I confess: I do have problems not discriminating against morons and have to keep reminding myself that often I fall into that same classification).
Granted, there are certain words and phrases that are designed to denigrate and are all too frequently used with the intent to hurt others. The N-word traditionally was one of those. In a sense, for the unenlightened (AKA, Millennials) the Confederate Flag is another. And I confess that for me personally “millennial” has become a somewhat a derogatory term. But to say that a single use of a single word, no matter how despicable that word is, defines the speaker and subjects them to immediate “corporate execution” is ludicrous and belies a holier-than-thou opinion of one’s self. Let he who is without sin cast the first stone.
May we all experience an awakening in which we realize that human beings are, by nature, sinful and such sinfulness plays out literally billions of times a day in bigoted, discriminatory and hurtful ways. We should do everything we possibly can to influence people to not hurt others, physically or emotionally. But it is a fool’s game played by the naive and ignorant to try to eliminate “hate speech” (I loathe that phrase) and all forms of hurtful behavior. Short of the second coming of Christ, it is not even possible.
So go ahead and reprimand and correct people when they are hateful and insulting towards others, as you should, but realize that you do the same things, just in different and perhaps more subtle ways. Realize, too, that we cannot criminalize every sin, no matter the degree of the sin, or all of us would wind up either fired from our jobs or in jail, or both. Yes, ALL of us, and that means you, too. (I will save my lecture on “degrees of sin and the proper perspective of the organizational police” for another time).
And let’s not all keep our panties in such a twist and our pucker-string pulled quite so tightly all the time. We will all be happier and healthier if we can do just that one little thing.