Magazine article Workforce

Are You Sure You Don't Discriminate?

Magazine article Workforce

Are You Sure You Don't Discriminate?

Article excerpt

A newer, subtler form of discrimination, "code words," can put your company at risk.

Thankfully, most employers have eradicated outright racism, sexism, ageism and such in the workplace. They've made clear that certain language and actions won't be tolerated. They've instituted diversity programs, rid themselves of the few bad apples.

They're not done. That's because some employees haven't changed their attitudes; they've just gotten smarter about voicing their prejudices. Instead of blatant derogatory remarks about certain groups of people, they use "code words": seemingly neutral phrases that carry negative connotations, but aren't as likely to come to managers' attention.

This type of language better start coming to management's attention. The U.S. Court of Appeals for the Third Circuit has ruled in a recent case that these code words can create a hostile environment. The result: Just because employers have eliminated blatant Title VII violations doesn't make them safe. It's the subtle, quiet discrimination-the kind managers don't always hear about-that can send companies to court.

James B. Brown, director of Pittsburghbased law firm Cohen & Grigsby, P.C., explains the case and offers advice on preventing such claims.

Can you explain the basics of Aman v. Cort Furniture Rental Corp., the case that set this precedent?

Basically what happened is two [African-American] employees of the Cort Furniture Co. filed a lawsuit in the federal district court claiming they were being racially harassed and discriminated against in the workplace. They were unable in their complaint to produce any direct evidence of racial discrimination, harassment or of a hostile environment. What I mean by direct evidence is people using well-known, overt, racially derogatory remarks.

What was their case based on then? There had been other words and phrases [allegedly] used in such a context that really did indicate racial animus or discrimination. These were terms such as "those kind," the "poor people," "one of them," "another one." Phrases were used such as, "Don't touch anything in customers' homes," "Don't steal," when talking to these folks. Finally the straw that broke the camel's back: The controller of the company [allegedly] told one of the two plaintiffs, "If this continues, we're going to have to come up there and get rid of all of you." When he was asked what "all of you" means, the controller didn't answer. The federal district court dismissed the plaintiffs' case. The court said there was no direct evidence of harassment or discrimination.

The plaintiffs appealed the decision?

The case was then appealed to the Circuit Court of Appeals, the level between the trial court and the Supreme Court of the United States. The Third Circuit revisited the situation and basically described these words and phrases used as code words. The court said the remarks were inherently racist and part of a pervasive racial discrimination at the fumiture company. The court said that even though Title VII of the Civil Rights Act doesn't prohibit racist thought, the law does require the employer to prevent such views from affecting the work environment. Title VII doesn't tolerate racial discrimination, be it subtle or otherwise.

Should employers have a policy regarding code words?

Every company in America today should have a policy against sexual harassment, race discrimination and racial harassment. Within those very policies should be language that makes it quite clear that not only does the company prohibit overt racial, sexual and age discrimination and harassment, but it also [forbids] subtle harassment and discrimination. …

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