Third, many judges have been reluctant to permit damage awards based on claims of emotional distress caused solely or even primarily by verbal abuse. They fear trumped-up charges and injuries. They fear infringements upon liberty in general and, more particularly, upon that guaranteed by the First Amendment to the United States Constitution. They also fear encouraging a debilitating oversensitivity and an over dependence on courts. Scores of judges embrace the proposition that “against a large part of the frictions and irritations and clashing of temperaments incident to participation in a community life, a certain toughening of the mental hide is a better protection than the law could ever be.”63 This attitude is mirrored in many judicial decisions. In Wiggs, for example—the case of the foulmouthed waitress—the plaintiffs prevailed, but that did not prevent the judge from intervening to lower the damage award. After the jury awarded $25,000 in damages, the trial judge stated that he would order a new trial unless the plaintiffs accepted a lesser sum. According to the judge, the jury had “plainly embarked on a giveaway program far out of line with common sense and experience.”64 While he condemned “the uncivil outburst and rude remarks made by [the restaurant] waitress,” he concluded that “a line would quickly form by members of any ethnic group to receive $25,000 as balm for an ethnic or racial epithet.”65 To prevent the plaintiffs from reaping what he perceived as a windfall, he reduced the money damages to one-tenth of the amount awarded by the jury, or $2,500.
In other instances, judges have not even allowed juries to decide the matter. Consider the following episodes:
A lawyer twice called a young black man a nigger while trying to collect on a debt. When the target of the insult sued, the trial judge granted summary judgment in favor of the defendant. He was upheld by the Kansas Court of Appeals, which ruled, “It appears to us that the trial judge was fully justified in regarding the epithets as ‘mere insults’ of the kind which must be tolerated in our rough-edged society.”66
A black man went to a store to return merchandise that he believed to be subpar. As a precondition for giving him a refund, a sales clerk insisted that the man sign a sales slip on which was written the notation “Arrogant nigger refused exchange—says he doesn't like products.” Courts in Illinois ruled that the notation, albeit rude, was insufficiently extreme and outrageous to serve as a predicate for the plaintiff's lawsuit.67
An employee in a Zayre's department store called a customer a nigger during a dispute over goods. When the customer subsequently sued, a judge ruled that even if the defendant had in fact said what the plaintiff alleged she had said, that conduct, though offensive, did not reach the level of outrageousness required for a recovery. Insulting and abusive though nigger might be, the court observed, “taken in this context it does not amount to the type of extreme and outrageous conduct which gives rise to a cause of action. Clearly the law cannot serve to redress all indignities.”68
A black man alleged that a white bartender had referred to him angrily as a nigger when he saw him speaking to some white women seated at the bar. When the man sued for damages, a judge granted summary judgment to the defendant. While referring to a person as a nigger was indeed outrageous, the court declared, the defendant should nonetheless prevail because the plaintiff had failed to show to the satisfaction of the court that his distress was severe.69
An employee responsible for looking after parking spaces called a person “nigger” in the course of an argument over a space. When the insulted party sued, the court ruled in favor of the defendant, essentially reasoning that the conduct complained of, albeit regrettable, had not been so bad and injurious as to warrant legal interference.70
An employee sued a supervisor who had referred to him as a “sleazy nigger.” A judge disallowed the claim for intentional infliction of emotional distress on the grounds that the remark did not rise to the level of intolerable conduct. Affirming the trial judge, an appellate panel commented that “as part of living in our society, we must tolerate a certain amount of offensive expression.”71
A plaintiff alleged that his employer had called him a “stupid nigger” and a “token nigger” and proclaimed that the firm “would never pay a nigger $75,000 a year.” Noting that “rarely will conduct in the employment context rise to the level of outrageousness necessary to establish a basis of recovery for intentional infliction of emotional distress,” the trial judge dismissed this aspect of the plaintiff's suit. The alleged statements were “inconsiderate,” the judge conceded, but they did not, he said, rise to the level of outrageousness the law required.72
Statutes prohibiting racial discrimination in employment provide yet another means by which the law offers recourse to targets of nigger. The most widely used of these statutes is Title VII of the Civil Rights Act of 1964. Two questions typically confront Title VII plaintiffs in suits involving nigger. The first arises in situations in which a plaintiff complains that his or her race has prompted an adverse decision regarding hire, promotion, or term of employment. In such cases, the question is whether a decision maker's use of the word nigger provides direct evidence of racial discrimination. The second question arises in situations in which a plaintiff charges that use of the N-word in the workplace has created a hostile work environment. Here the key issue is often whether such usage has been sufficiently burdensome that the legal system ought to make relief available. Consider the following cases, which illustrate these two scenarios.
In 1967 Henry Brown, a black man, got a job as a janitor with the East Mississippi Electric Power Association (EMEPA). Over the years he won promotions within the company, eventually attaining the position of serviceman, a post in which he performed such tasks as installing meters, pulling meters, troubleshooting in instances of malfunction, and, occasionally, collecting on overdue accounts. Servicemen work alone and enjoy a degree of independence that other EMEPA employees do not have. Brown was the company's first African American serviceman.
In 1989, EMEPA higher-ups informed Brown that he would have to either accept reassignment or else leave the company. His supervisors maintained that their action was prompted by complaints from customers, several of whom had asserted that Brown was rude and had cursed at them. One had charged that he engaged in reckless driving. The complaints had continued even after Brown had received an earlier warning to avoid consumer dissatisfaction. Faced with a choice between reassignment (and therefore the loss of his post as a serviceman) and termination, Brown ceased working for EMEPA and thereafter sued, charging that the company had subjected him to racial discrimination. According to Brown, EMEPA treated him differently, more harshly, than it did its white servicemen. Under similar circumstances, he averred, a white serviceman would not even have been reprimanded, much less demoted.73
As a key piece of evidence in his case, Brown cited a supervisor's use of nigger. In 1985, prior to becoming a serviceman, Brown had overheard an EMEPA supervisor on the radio discussing a traffic accident. At some point in the conversation, he testified, the supervisor said something to the effect of, he felt like getting a gun and shooting the offending “nigger.” A couple of months later, after he became a serviceman, Brown heard this same supervisor say to another serviceman, “You should have hooked that power up for that nigger [presumably a customer]. You know how they are. ”According to Brown, he complained about this use of the N-word to a company official, who told him he would take care of the problem. A while later, however, the supervisor called him into his office and demanded that he stop calling him by his first name over the company radio. “If you call me [by my first name] one more time on that radio,” the supervisor threatened, “I'll call you ‘nigger.’ ” Brown said he subsequently overheard the same supervisor referring to him as a nigger on two occasions. In one instance the supervisor said, “Look at my little nigger going down the hall. We brung him to his knees.” At another time he declared, “We finally got what we wanted. We got rid of that little nigger.”
That the supervisor occasionally used the
N-word was uncontested; other EMEPA employees, including several whites, confirmed this. And the supervisor himself admitted that nigger was part of his vocabulary. He insisted, though, that he did not use the word in front of blacks and that he had largely stopped saying “nigger” after company officials instructed him to do so.
After a trial, United States District Court Judge Tom S. Lee ruled in favor of EMEPA. He gave several reasons for his decision. Contrary to what Brown alleged, he said, white servicemen had been reprimanded following customer complaints; one had even been fired. Then, too, Brown had offered no evidence to show that the company condoned the use of racial slurs. After the serviceman complained to company officials about the supervisor's use of the N-word, they responded by telling the supervisor to stop doing it or risk being fired. The judge disbelieved Brown's testimony regarding the supervisor's alleged continued use of the N-word after that warning and expressly credited the supervisor's denial that he had referred to Brown as a “little nigger.” The judge noted that it was this very supervisor who had been instrumental in getting Brown promoted to the position of serviceman in the first place. Judge Lee stressed, moreover, that in the final confrontation between Brown and company officials, it was the supervisor who had sought to intervene on Brown's behalf and implored him to cool off before quitting and thus throwing away the benefits he had accrued over twenty years of employment at EMEPA.
The Fifth Circuit Court of Appeals reversed Judge Lee. It ruled that the supervisor's “routine use of racial slurs constitutes direct evidence that racial animus was a motivating factor in the contested disciplinary decisions.”74 According to the appellate judges, the supervisor's repeated use of nigger could not be dismissed as an innocent habit: “Unlike certain age-related comments [e.g., ‘young tigers’] which we have found too vague to constitute evidence of discrimination, the term nigger is a universally recognized opprobrium, stigmatizing African-Americans because of their race. That [the supervisor] usually was circumspect in using the term in the presence of African-Americans underscores that he knew it was insulting. Nonetheless, he persisted in demeaning African-Americans by using it among whites. This is racism.”75 Concluding that this individual's racism had infected the decision to reassign and demote Brown, the court of appeals asserted that the supervisor's “ ‘I had to dust my little nigger’ comment… demonstrates that his racism distorted Brown's employment record and extended to decisions of the type at bar.”76 Furthermore, the appeals court took the unusual step of deciding key factual issues of the sort that are typically remanded to the trial judge for determination. When a plaintiff shows that racial bias played a role in a challenged decision, for example, the defendant is offered the opportunity to show that he would have made the same decision even absent the racial bias. Usually trial courts make such findings. In this case, however, the court of appeals decided the issue on its own, circumventing the trial judge—purportedly out of “a prudential concern for scarce judicial resources.”77
Mr. Brown was very lucky; other appellate courts might well have decided the case differently. For one thing, appellate courts generally defer to the factual findings of trial judges. But in this case—though without expressly saying so—the appeals court declined to accept Judge Lee's findings of fact. Whereas Judge Lee had explicitly discredited Brown's testimony about hearing the supervisor refer to him as a “little nigger,” the appellate court cited this very testimony as the predicate for its conclusions that the supervisor was racially biased and had contaminated EMEPA's decision making with his prejudice.
The probable mainsprings of the decision in Brown were an appreciation of the likelihood that extraordinary scrutiny had been focused upon EMEPA's first black serviceman; a realistic sense that he was bound to receive more than his fair share of white customer complaints regardless of his actual conduct; distrust of the trial judge's perception of the situation; and, outweighing any other single consideration, a deep reluctance to rule in favor of a white employer whose place of business echoed with nigger references. “At the heart of this appeal,” the appellate court declared, “is the significance of [the supervisor's] routine use of the term nigger.”78 Contradicting the defendant's dismissal of such language as “isolated remarks,” the plaintiff had succeeded in persuading the appellate court that the supervisor's use of nigger constituted “direct evidence” of illegal racial discrimination. Direct evidence is evidence that, if believed, proves a fact without inference or presumption. It precludes the necessity of inferring whether a challenged action constitutes (in this context) racial discrimination, because it compels that conclusion.
Given the protean character of nigger, which may signal several different (even contradictory) meanings, it is probably erroneous to conclude that the word itself necessarily furnishes proof of racial discrimination, even when the speaker is white and the target black. Automatic labeling of nigger may be an efficient shorthand method for judicially assessing the N-word—a method whose inevitable mistakes may be tolerable given the savings it affords in labor and time. Perhaps in the context of antidiscrimination law at the workplace, moreover, it is better to err on the side of overenforcement rather than underenforcement. Still, even if that is so, it is important to remember that the N-word is not self-defining. Its actual meaning in any given instance always depends on surrounding circumstances. Deriving an understanding of nigger thus always requires interpretation.
The second category of Title VII cases featuring nigger comprises lawsuits alleging that an employer has either knowingly or negligently condoned a racially hostile workplace environment. One such suit was filed by James H. Spriggs, an African American who worked at the Diamond Auto Glass Company in Forestville, Maryland, as a customer service representative in the 1990s.79 Spriggs left Diamond because of what he viewed as the company's inadequate response to misconduct on the part of his supervisor, a white man named Ernest Stick-ell. According to Spriggs, Stickell, in his presence, constantly referred to African American customers and employees as monkeys and niggers. Stickell himself was married to a black woman, but according to Spriggs, she, too, was subjected to her husband's racial vilification. Stickell referred to her as a black bitch and directed racial slurs at her in agitated phone conversations that Spriggs said he could not help but overhear. Angered, Spriggs quit Diamond but returned after the company's management assured him it would force Stickell to clean up his language. Spriggs maintained, however, that Diamond failed to make good on its promise and that Stickell's verbal conduct did not improve; indeed, in Spriggs's view, his supervisor's behavior worsened. Stickell continued to describe his wife in racially derogatory terms and repeatedly called Spriggs a monkey and a nigger to his face. Spriggs claimed that Stickell also inserted between pages of a manual that he (Spriggs) regularly consulted a picture of a monkey, with a notation that read, “So you'll never forget who you are.”80
Spriggs eventually resigned and sued, charging that he had been victimized by harassment that created a racially hostile workplace in violation of Title VII. In order to prevail, he would have to satisfy both a subjective and an objective requirement: he needed to show that he himself had actually perceived the work environment to be abusive and that a reasonable person would also view it thus.81 According to the Supreme Court, “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment … is beyond Title VII's purview.”82 The “mere utterance of an… epithet which engenders offensive feelings in an employee” is insufficient grounds;83 the conduct objected to must be sufficiently bad that “a reasonable person” would find it to be intolerably hostile. Many judges demand that “reasonable people” be thick-skinned and have a high threshold for tolerating irksome, even deplorable, conduct. Spriggs drew such a judge. United States District Court Judge Frederic N. Smalkin granted summary judgment to Diamond, holding that, even assuming that his factual allegations were accurate, Spriggs's suit failed as a matter of law. But the Fourth Circuit Court of
Appeals reversed, remanding the case for trial. The appellate court concluded that the language Spriggs had found objectionable was sufficiently injurious to be deemed a violation of Title VII if, upon trial, his allegations were determined to be true. Central to the court's ruling was the special place of nigger in the lexicon of verbal abuse. “Perhaps no single act,” the court remarked, “can more quickly alter the conditions of employment and create an abusive working environment than the use of… ‘nigger’ by a supervisor in the presence of his subordinates.”84 Elaborating, the court averred that “far more than a ‘mere offensive utterance,’ the word ‘nigger’ is pure anathema to African-Americans.”85
Hostile-workplace litigation—like every other kind—is frustrating, expensive, and risky. Corporate employers are liable for abuse committed by their employees, but only if they are put on notice that such abuse is occurring. This poses a dilemma for victims. If they repeatedly report abusive behavior by co workers, they may improve their chances of obtaining legal relief in the event of litigation, but they also run the risk of poisoning relations with colleagues and alienating supervisors. Compounding this conundrum is the difficulty of predicting whether or not a court will see the reported misconduct as unlawful. No bright line authoritatively distinguishes mere rudeness from illegal abuse; drawing the line is a matter of judgment, and judgments vary.
Nigger: The Strange Career Of A Troublesome Word Page 7
