National Clothesline

In Minnesota, a native of Haiti sued the Greater Twin Cities Youth Symphonies for race and national origin discrimination when that organization fired him. He presented evidence that the president of the board had referred to him as la bete noire, which literally means the black beast in French.

While the court made it clear that if the president had called the plaintiff a black beast in English, that would have been direct evidence of discrimination, the court found the French phase to be non-racial, meaning an insufferable person. The court, by the way, dismissed the case against the symphony.

I had several reactions when I read this case. First, what employer uses French to describe employees? Should I be advising my clients to use the phrase enfant terrible or tresbien in employee evaluations?

Second, is it right for federal judges to be splitting hairs over language to decide whether to dismiss a case or allow a jury to award a person millions of dollars?

A few years ago, an employee of the District of Columbia got in trouble for using the word niggardly, which means stingy. The word sounded too much like the racist term that is now referred to as the N-word.

This case, as well as fallout from Michael Richards’ (Kramer from Seinfeld) racial outburst at a comedy club, has made me give a lot of thought lately to the use of the N-word by African-Americans, mostly male, to refer to each other. Culturally, it is acceptable in some circumstances for black people to use the term to refer to each other or to other African-Americans

Should a black employee be allowed to refer to another black employee or person by the N-word, provided they both consent to the use of the term, while a white employee would be fired for using the term in virtually any circumstance?

Naomi Earp, the Chair of the federal Equal Employment Opportunity Commission, recently stated at a dinner speech that the EEOC has zero tolerance for the use of the N-word, regardless of the race of the employees using it.

Of course, zero tolerance does not necessarily mean automatic termination for any one who uses that term. What I think she meant was that the EEOC would support a ban on same race use of derogatory terms, provided the ban was uniformly applied in the workplace.

For example, terminating two employees for using the N-word would be fine, provided employees of Italian or Latin American descent were not allowed to call each other the D-word, the G-word, the S-word, and so on without being terminated.

But what if employers merely decided to tolerate same-race use of derogatory terms, provided there was consent or cultural reasons for the use of these terms?

I suppose that would be possible, but what about women referring to each other by sexist terms? Is it acceptable for a person in his 80s to call a 60-year-old employee an old coot? Would you have a different standard for supervisors when addressing employees of the same race, sex, age, or ethnicity to make sure that there was actual consent, rather than fear that a complaint to the supervisor would result in retaliation?

I believe that the safest approach for employers is to ban any racially charged language, including language involving ethnic, sexist, or age-related slurs, between employees, whether there is consent or not. It makes little sense to have to explain later why some language was tolerated and some was not.

In situations where cultural norms allow same race use of derogatory terms (such as the N-word), I would recommend counseling of the employees involved, followed by progressive discipline leading to termination. I am sure that the EEOC’s zero tolerance policy is more a wish than a requirement.

Then, of course, there are the rules in the sexual harassment regulations against hostile environment discrimination. Vulgar language, which has been a staple of many workplaces since the beginning of time, is no longer appropriate, especially if an employee complains about it. I advise my clients to stop vulgar language whenever possible, and if it persists despite their efforts, to make sure employees know that they can complain to management without retaliation, even if they once consented to the language and now find it objectionable.

I gave a seminar on labor relations, including sexual harassment policies, not too long ago at a warehouse facility owned by a member of a trade association I represent. Before we began, one of the employees of the host company went out to raise the flag. He was wearing a shirt with the f-word on it. Actually, it had two cowboys on it and the legend Brokef_%$ Mountain.

It gave us a good discussion topic for the seminar. We all agreed that sending the employee home to change his shirt (or making him cover the shirt) immediately was the best approach with a warning not to wear vulgar tee shirts or other garments in the future. Better to do that than find out three months later that an employee quit over the tee shirt and is prepared to catalog all the instances where other employees made suggestive remarks or posted dirty jokes, with no response from management.

The old nursery rhyme about sticks and stones is no longer valid. Words can hurt employers economically. Pay attention to what your employees are saying, and take action if you think the language of your workplace could become a legal liability. Don’t be a #$%@%.