Very few topics which we have discussed in this blog have produced more reader comments than racial harassment, and specically racial slurs and epithets.   On May 15th we asked, based upon a few court decisions which we found difficult to reconcile,  how many many racial slurs must be made before a hostile work environment is created?

17478324_sHow many times must an employee endure a crude and offensive racial or other epithet for the situation to be considered either severe or pervasive?  
Many readers shot back good comments which we will publish soon. 
But the following two comments we feel may possibly define the parameters of the conversation, and so we publish them first. 


Carlos Cortes, a diversity lecturer and consultant in the LA area asked “Who decides if a specific word is a ‘racial slur?’  That is a real dilemma.”

He went on to comment:  “There are plenty of racial slurs that all “reasonable people” (whoever they are) would agree on. That’s the easy part. However, in my years of diversity work I’ve run across lots of words that some people view as slurs and others do not. In fact, that has sometimes become a heated topic in my workshops.

My concern within any organization is who becomes the final arbiter of determining whether or not a racial term is indeed a slur. Once you get beyond the obvious ones, it’s not quite so simple. Before I would support a “zero tolerance” policy on racial slurs, I would like to know who makes those categorical decisions and what standards they use to make that decision.

I have never encountered a good system for making such decisions. If somebody knows of one, please discuss it.  That would be very enlightening, at least to me.”

Scott Harrison, HR Director at Thomas M. Cooley Law School, responded:

“Carlos, I think the answer to your question is the only system available for making such decisions are the courts. These decisions are as much contextual as they are “definitionally” based.   As you noted, there are plenty of terms people can generally agree are racial slurs. But when we got tired of those it became necessary to create a pseudo-class of terms farcically called “code-words” advanced mostly by the same people who believe the Kennedy assassination was carried out by extraterrestrials. The evolutionary nature of our language and “slurs” makes a universal system for managing such behavior impossible.

I think the courts referenced in Mr. Cohen’s article made the correct decisions based on two lines of thinking–though one is speculation on my part. First, I do believe the “N” word has a singularly grotesque impact in United States culture and the court’s comment that ” no single act can more quickly alter the conditions of employment” than “the use of an unambiguously racial epithet [such as the “N” word] by a supervisor” reflects this thinking. As opposed to any other racial epithet, the “N” word usually marks the speaker for life irrespective of the context in which it is uttered (i.e. Mark Fuhrman or Paula Dean). Thus, even compared to the despicable term “porch monkey” the “N” word has greater severity.

The second point is perhaps more subtle, if it is even correct. Use of the “N” word by a supervisor is potentially different from it’s use by a rank-and-file employee. It seems to represent the equivalent difference between quid pro quo sexual harassment and hostile work environment sexual harassment. When a supervisor says it as opposed to a co-worker who has no control over the claimant’s employment the very nature of the employment relationship changes. It would therefore take a more pervasive use of the racial epithet(s) by a co-worker(s) to alter the conditions of employment.

The concept of “code words” has been introduced to keep the waters muddy and keep the conflicts alive. Moreover, as Mr. Alvarado points out, there is virtually no equity in applying these “standards” to all class members (which arguably may be as much the fault of employers as any other). Yet, to paraphrase Justice Scalia, Title VII does not establish “a general civility code.”

Thus I don’t think a “zero tolerance” policy can be applied so much to words as to the circumstances potentially created by those words. In the context of employment how does the use of a clear racial or gender slur potentially alter the employment relationship. It is impossible to compose a comprehensive list of slurs that must be banished from a company’s lexicon. If it weren’t, I’m sure the EEOC would have already published it. So in addition to responding on a case-by-case basis to allegations of racial or gender animus, the best thing an employer can do is train generally toward a cultural orientation that reflects sensitivity for all employees’ backgrounds and circumstances. That is the best we can achieve so long as we continue to recruit from the human race.”

A late addition to this post is from  J. Alan HartSouthworth, a diversity and inclusion consultant in Potomac, Maryland:

“The definition of a “racial slur” is rather vague. I would think that if anyone says anything that negatively impacts or speaks negatively about another group, (WHETHER OR NOT a “racial slur”) that it should not be tolerated.

Since there is not official list of “racial slurs,” it has to be based on interpretation by the people who can hear the word(s) – whether that is the ‘target’ group or bystanders. Some people will line up on either side if you try to define it as a “racial slur”, but if it is defined as a ‘statement that is divisive, contentious, disruptive or in some way does harm’, then it may allow for discussion and negotiation rather than debate.

If someone says about another group, “Those purple bellies are a bunch of lazy jerks,” it is clearly not a statement that creates unity and is supportive of others (especially for the purple bellies – who ever they are.) Such a statement should cause concern and should be called out as an example of language that is not tolerated in a business with a ‘zero tolerance’ policy.”

Any thoughts on this issue?