Last month we thought that we had capped a whole series of blogs about the “N-word” and the image of a noose which appear regularly in cases of hostile work environment based upon racial harassment.  We cited a decision where the Court stated that this frequent use of the “N-word” and racial jokes was "constitutionally offensive in any setting …  No reasonable jury could find that a reasonable African-American would not be offended by this conduct."  

Now comes a somewhat startling decision from an Arkansas federal court where an African American employee was so offended because of frequent and heavy use of the “N-word” in the workplace by co-employees that she complained to management.  So far it sounds like the typical racial harassment case. 

However, the Court called the use of the “N-word” mere “coarse jesting,” and “not used derogatorily at all,” and so “the Court has trouble seeing how an objective person in Plaintiff’s position would have found her co-workers’ jesting ‘extreme in nature.’”

What caused this court to hold so differently than the first court?  How could a judge who herself would not even spell out the offensive word (except in a quote in a footnote) and had to write “the N-word” call this usage in thwe workplace simple “jesting.”  

The answer (or sub-text) may be, although the Court downplayed it, that the co-employees who repeatedly used the “N-word” were themselves African American, and that therefore, as the Court said,  “By all appearances, the term was not used derogatorily at all.  It might have offended Plaintiff, but viewed objectively, the language was at most coarse jesting.”  The offending conduct was therefore found not to be severe enough to create a hostile environment.  

It seems unimaginable that while the Court found that the racial epithets “might have offended Plaintiff,” she nonetheless focused instead on the intent of the persons who uttered the word.   They were only "joking." 

Would it not be sexually harassing for a male or female co-employee to make coarse sexist “jokes” repeatedly, offending a woman employee within hearing range?   Can someone who makes such “coarse jokes” be excused if he simply claims to have been kidding?   

By the way, the Court’s only mention of “the word” was relegated to the following footnote: “The comment directed at Plaintiff and one other co-worker happened after the kitchen crew nearly missed getting breakfast out one Sunday. The comment was, according to Plaintiff: ‘I told you niggas we could get this done. I told you we could do this. Y’all my niggas.’”    Is this a "jest?"

The very fact that the judge could not even spell the word highlights the fact that the term is offensive per se — if uttered by non African Americans would it have been appropriate?  

Anyone find this troubling?