JURIST Guest Columnist Ayanna Thomas, St. John’s University School of Law Class of 2015, is the author of the tenth article in a twelve-part series from the staffers of the Journal of Civil Rights and Economic Development. Thomas discusses racial discrimination in the workplace…

A federal jury in New York shocked the nation in 2013 when it ruled that a black male supervisor created a racially-hostile work environment when the supervisor called the employee the “n-word.” Brandi Johnson, the plaintiff in that case, was awarded $280,000 in damages after the jury found in her favor. Many people were either confused by the ruling or viewed this case as a victory for victims of racial harassment in the workplace. They may say, “How can a black person find the ‘n-word’ offensive? It’s used frequently in the black community, and it’s even in rap lyrics.” However, people may fail to realize the context of the word is significant. If your supervisor repeatedly told you to stop acting like an “n-word” in the workplace, you would probably feel degraded, hurt, disrespected and embarrassed just like Brandi Johnson, regardless of whether your supervisor is black or white.

To successfully establish a claim of racial harassment in the workplace under Title VII, the plaintiff must prove that a supervisor’s behavior was sufficiently severe or pervasive in creating a racially-hostile work environment. This standard requires the jury to determine whether the harassment was objectively offensive (a reasonable person would find the harassment hostile and abusive) and subjectively offensive (the plaintiff perceived the working environment to be offensive). In interpreting this standard, the court determined that jurors have to consider the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance and whether it unreasonably interferes with the employee’s work performance or terms and conditions of one’s employment.”

This legal standard should be changed for situations where a supervisor calls the employee the “n-word” for three reasons: (1) the “n-word,” in itself, is offensive; (2) societal norms deem the word to be offensive and obscene and (3) courts have ruled in racial harassment cases that the “n-word” alone is offensive. Therefore, the process for jury determination should be simpler, and the jurors should have to decide only whether a supervisor called an employee the “n-word” to disparage or belittle him or her instead of having to consider if the word is objectively and subjectively offensive.

The “N-Word,” In Itself, Is Offensive

The Merriam-Webster Online Dictionary defines the “n-word” as “the most offensive and inflammatory racial slur in English.” The word was used and is still used to intimidate African Americans and to point out their alleged moral and intellectual inferiority. Some may argue that the word is detached from its negative origin because black rap artists use the word in their rap lyrics to give the word a positive meaning. Hip-hop artists use the word to emphasize a self-empowered and self-determined African American identity. Even when blacks drop the “-er” from the word and replace those letters with an “-a,” the word can be used in the context of expressing disapproval of someone’s actions, and it can retain a negative meaning. Organizations, such as theNational Association of the Advancement of Colored People (NAACP), are working to dispel the myth that the “n-word” does not have a negative meaning. The NAACP held a funeral and burial for the “n-word” in Detroit, Michigan to discourage the entertainment industry from using the “n-word” in videos, songs and stand-up routines. Nevertheless, jurors should not have to prove that the “n-word” is offensive since it is already offensive by definition.

Societal Norms Deem the Word to Be Offensive and Obscene

The use of the “n-word” is socially disapproved, and the use of the “n-word” in literature is also disapproved or banned. Mark Twain’s Adventures of Huckleberry Finn is the fourth most-banned book in schools because the “n-word” appears 219 times. In 1957, the New York City Board of Education removed the book from approved textbook lists for elementary and junior high school students. A new edition of the novel replaces the “n-word” with “slave” in an effort not to offend readers.

High-profile or influential individuals, such as actors, television hosts, professional athletes, singers, politicians and teachers, suffer severe consequences for using the “n-word.” Jonathan Rhys Meyers, an actor on the television show, The Tudors, was banned from a United Airlines flight when he used the “n-word” to berate an airline employee. Richie Incognito, a football player for the Miami Dolphins,was recently suspended indefinitely for calling his teammate the “n-word” in a voicemail. Jerry Spivey, the District Attorney for North Carolina’s Fifth Prosecutorial District, was removed from office after repeatedly calling an African-American man the “n-word” in a bar. In addition, an English teacher at a high school in Denver, Colorado was suspended for using the word during a class discussion. Since societal norms deem the isolated use of the “n-word” unacceptable, the word should be treated the same in the workplace.

Courts Rule That the “N-Word” is Offensive

Courts say the “n-word” does not belong in the workplace. Why? Because “no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his subordinates.”

These courts have captured the essence of societal norms, and a new standard would ensure that court rulings are consistent with societal norms. Courts should adopt a “discrimination per se standard” to rule in circumstances when a supervisor uses the “n-word” to belittle or disparage an employee in the workplace. Under this standard, the “n-word,” in itself, would be considered to be offensive without considering other factors, such as the number of times a supervisor called his or her employee the word, the race of the supervisor or if the use of the word was objectively offensive. This standard is consistent with societal norms and previous court rulings because using the “n-word” in the media is morally disapproved and courts have ruled, without further analysis, that the word does not belong in the workplace. When jurors are presented with a use of the “n-word” case, they would only have to determine (1) if a supervisor used the “n-word” (2) in the workplace (3) to disparage or belittle an employee. If all three factors are met, the supervisor’s employer would be liable for causing a racially-hostile work environment. The employer can assert affirmative defenses. For instance, the employer can show that (1) the employee consented to the use of the word with his supervisor; and (2) the “n-word” was not used to demean the employee because the employee misunderstood the context in which the word was used.

It is simply unprofessional and unacceptable for supervisors to call their employees the “n-word” to disparage or belittle them in the workplace. We can only imagine the number of Brandi Johnsons across the nation who are dealing with uncouth supervisors that drop the “n-word” to intimidate their employees. Hopefully the ruling will deter supervisors from using the “n-word” in the workplace, and plaintiffs will no longer have to convince a jury that it is offensive when a supervisor calls their employee the “n-word” to belittle him or her.

Ayanna Thomas earned a B.A. in Political Science from State University of New York at New Paltz. Thomas currently serves as the Associate Managing Editor of the Journal of Civil Rights and Economic Development.

Suggested Citation: Ayanna Thomas, No Excuses: The “N-Word” Does Not Belong in the Workplace, JURIST – Student Commentary, Jan. 21, 2015, http://jurist.org/student/2015/01/ayanna-thomas-employment-discrimination.php.

This article was prepared for publication by Joseph Macklin, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to him at commentary@jurist.org.