Watch Your Language!

By Lawrence F. Feheley

Everyone is aware of the dangers of sexual harassment. Most people are also aware that it is equally unlawful to allow harassment in the workplace that is based on other protected characteristics – such as race, age, national origin, and disability.

Racially-based comments can give rise to a racial harassment claim. Racial harassment claims generally arise from the creation of a racially hostile work environment. However, racial comments can also be important evidence in a claim of racial discrimination. A recent federal court case shows how important errant comments can be.

In this case, an African-American employee applied for a promotion, but the position was given to a white employee. The rejected employee filed suit, claiming racial discrimination. The employer prevailed in the lower court (the district court), and the federal appeals court agreed. However, the U.S. Supreme Court reversed the decision and sent the case back for a trial to a jury. The basis of the Supreme Court's reversal was evidence that was plant manager, who made the promotion selection, frequently referred to African-American employees as "boy."

The appeals court had ruled that use of the term "boy," without a racial adjective or reference like "black" or "white," was not evidence a discriminatory attitude. The Supreme Court said it was not that easy: "Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone is always benign. The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage." [Ash v. Tyson Foods, Inc., 2006 U.S. Lexis 1816 (2006)].

The lesson is that loose and unthoughtful language, even if used in jest, may very well be the lynchpin of a later harassment or discrimination suit.