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Court: Supervisor can't just call black worker 'most hateful and offensive' epithet in English and get away with it
By adamg on Thu, 03/03/2011 - 11:15am
The Massachusetts Appeals Court today overturned a judgment against a worker who had sued Harvard Vanguard for discrimination, ruling he has the right to make his case to a jury that having a supervisor call him "a dirty fucking nigger" was proof of workplace discrimination against him.
At issue in Darrel Green's suit against the insurer is what happened after he complained to HR in 2005 that he was only being given 20 hours of week at its Kenmore Square health center instead of the 40 he says he'd been promised when hired. Green alleges that not long after he talked to somebody in HR, his supervisor went up to him and demanded to know, "Who do you think you are? Who do you think they are going to believe, me, a valued employee of over ten years or a dirty fucking nigger?"
According to the ruling, Harvard Vanguard did not dispute Green immediately complained to HR that the supervisor had called him "nigger," although it disputed whether he prefaced that with "dirty fucking." A lower-court judge dismissed Green's suit, agreeing with the insurer that he effectively absolved it by signing a severance agreement not to bring any claim against it.
However, the appeals justices said Green had made a strong enough case to warrant a trial, such as by also alleging that in addition to the written settlement, he was orally promised a job in another Harvard Vanguard department - and was promptly given a job in cardiology for which he said upfront he was unqualified and from which he was quickly fired for that reason.
But the justices said that even absent that potential fraud, the use of "the racial epithet that is widely regarded as the most hateful and offensive in our culture" alone is enough to warrant a trial - and that a written agreement that effectively violates state anti-discrimination laws by blocking any actions is not legal:
As we explained just last year, "a supervisor who calls a black subordinate a 'fucking nigger' has engaged in conduct so powerfully offensive" that liability for racial discrimination under [state anti-discrimination laws], may be based "on a single instance. That term inflicts cruel injury by its very utterance. It is degrading, it is humiliating, and it is freighted with a long and shameful history of humiliation, the ugly effects of which continue to haunt us all. The words have no legitimate place in the working environment--indeed, they have no legitimate place--and there is no conceivable justification for their use by a workplace supervisor." ...
The use of these disgusting, demeaning, and humiliating words, and the impact of their use upon those to whom they are directed, is a grave matter. Among the purposes of our Commonwealth's antidiscrimination laws is the elimination from the workplace of this offensive and hurtful racial epithet--and of all others--and of the discriminatory injury inhering in their use.
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Comments
Frustrating
Then why did he sign the severance agreement?
:/
I completely agree with the precept of the appeals court (that the slur was one of the worst possible), but he signed away his right to the trial. What's the dividing line now for when the courts should undo the agreed contract because someone "deserves" a trial because of the horrible onus of the workplace offense?
Calling Jews "hymies"? Is calling an Italian a "dago wop" bad enough? If a boss calls a white guy a "cracker"?
This is why companies put these things in the severance agreements and why you should read everything you sign before deciding if you could get better justice (or a bigger payday) out of it by going to court instead. This should have been lesson learned as the initial court basically told the plaintiff. But somehow this particular slur is so bad that it justifies undoing the indemnity the plaintiff gave the company by signing the contract. What a frustrating mess all around.
Well, if it were only the signed agreement
He is also claiming that alongside that, he got an oral agreement to get another job and that he was purposefully put in a job he was unqualified for.
But, yes, they did emphasize the nature of the specific epithet. In practical terms, I'm thinking that in 2011, it still, unfortunately, has some currency, while it's somewhat unlikely for anybody to start flinging "hymie" or "dago wop" at anybody, especially not in the context allegedly used against him ("Who are they going to believe? Me, a trusted employee of 10 years or a fucking hymie?" just doesn't sound believable anywhere outside a neo-nazi group).
Just read the full opinion
I think part of my problem was actually with your wording in your summary, Adam:
"...and that a written agreement that effectively violates state anti-discrimination laws by blocking any actions is not legal"
I disagree with the implication of that sentence. You are implying that the appeals court was willing to overturn the lower court on the epithet being involved in the case alone. That is what I was questioning in my above comment the most. I disagree that this is one of their findings based on reading the full opinion. They are stating that the epithet, used only once in your entire employment, is one that you could base a trial on. However, their overturn of the lower court comes later in the opinion. The lower court gave summary judgement to Vanguard. They claim that there are multiple reasons why that does not give the plaintiff (the non-moving party) the benefit. They claim that a jury would potentially have reason to agree that the oral agreement for a new position was part and parcel of the resignation agreement and that failing to do so with the non-applicable new position would breach the signed contract (thus allowing the plaintiff to sue and nullifying the summary judgement's decision).
There are one or two other good justifications given for overturning the lower court, but none of them are predicated on the epithet used...they just agree based on the epithet that he has a valid lawsuit to begin with, not that this was any reason for their own decision. What I don't see is the part where they agree that you can't sign away your right to a trial over this anti-discrimination law because the epithet is so loaded with history. Am I just missing it in the full opinion?
After reading the full opinion, I'm less frustrated since there was more to it than just signing away his right to trial since there was this whole "we'll get you a new position" and all. I mean, forcing him to officially "resign" and get "re-hired" as opposed to firing the racist or putting her somewhere else...that just seems wrong to begin with...
Essentially HR at Harvard Vanguard said to him: "You're the victim, but you have to be inconvenienced and screwed over because you can't work with your assailant any more, got it?" That's just piss poor.
Unbelievable?
Google 'hymietown'. The ridiculously vilified "n-word" (n-word - how juvenile can you get?) is commonly used today in music as are most other words once considered unacceptable (F you, network censors). In an advanced society like ours how can we justify that words can only be used by one race.
Justified...
Really? So let me see if I understand you...you want to be able to use the "n-word" because other people who are just as ignorant as you who happen to be black also use the "n-word"? Is that what you're really saying? Do you have a burning desire to use the word? Or, do you have a neighbor or co-worker you don't want to get sued by after your inevitable racist outburst?
Uh, no
No more than *I* want to use the word 'hymie' or 'mick'. But let's keep it all in perspective. They are words. Symbols. And they're all equivalent and need to be treated as such without some being only to be used by a, perhaps, 'privileged' group.
Uh, no
No more or less than I want to use 'whore' or 'white man' in the pejorative.
Was that supervisor really advocating all that goes along with the hatefulness with which the word CAN mean? Just what was he meaning? What is meant when the word is used by hip-hop artists?
What is the result when a publisher feels the need to bowdlerize Twain?
Let's break down the barriers, not institutionalize new ones. The very act of allowing a group of people to use some words and prohibiting other people from the same is erecting a barrier.
Word nazis serve no positive purpose, whether the words are considered on an individual basis or assembled into books that we don't agree with.
Consider the adjectives preceding the noun
> Was that supervisor really advocating all that goes along
> with the hatefulness with which the word CAN mean?
dirty + fucking -- does that give you a clue as to the degree of harefulness involved?
Yup.
And that's what implies to me that it had little to do with the employee's race and more to do with the supervisor's reaction to something the employee did (or did not do) that was unacceptable regardless of race.
So the supervisor's use of the term proves to you....
...that the _employee_ behaved in an an unacceptable manner?
That makes NO sense whatsoever.
Proves?
Follow along - use a ruler or trace your finger across the screen if you need to.
My original point was in response to adamg saying "it's somewhat unlikely for anybody to start flinging 'hymie' or 'dago wop' at anybody." Inappropriate, yes. Unlikely, no. All sorts of people fling all sorts of shit all over the place. The supervisor's diatribe, albeit reprehensible, seems to indicate, to me, that the employee had done or said something which caused the supervisor to go beyond acceptable workplace behavior.
This then evolved to point 2: We all use the american language here; how could a word, and only one word, be limited to some people and prohibited by others in any culture? Just as in law and lexicography, the precedent of current day usage of an otherwise forbidden word should make it fair game to be used by all. I'm not even going near the term of endearment bull shit; listen to some more hip hop lyrics until you get to the bullets flying. Beside which, the term 'nigger' is not the heart of this issue. The court refers to "disgusting, demeaning, and humiliating words [plural]," not "Ooooh he said the 'n-word' - ooooh." In spite of the dirty little dreams some here might have envisaging an overwhelming desire on my part to call someone a nigger, I much prefer 'dirty fucking' anything else but, regardless of the skin color of the ass hole who has offended me, and it usually does the trick for getting my rocks off when pissed.
Point 3: None of us knows the background of the case from what is presented here, but just as a cop's word would be taken over a defendant's word without evidence to the contrary, I'm inclined to believe the word of a supervisor in a reputable organization. (I'd go with a supervisor's word over a cop's if the day ever comes that I get the choice.) The supervisor's status in the organization seems to indicate this is not his usual tack and that he is otherwise adequate in his role. Of course, now he should go to 'n-word' rehab and thereby redeem himself in the eyes of some of you P.C. high priests.
Now to expand on point 2: Let's get over any tingling associated with the word 'nigger' (and it's various permutations), people, and let's judge any person by his merits - or lack thereof. Personally, I find other forms of expression of discrimination and hate to be just as reprehensible, such as displays of confederate flags in the 21st century and homophobic epithets. But we all know the 'f-word' isn't 'faggot', so I take it calling someone a faggot isn't as bad as saying 'fuck' or calling someone a 'nigger'.
high usage
He doesn't want to use "the N word", but its somewhat contradictory to hear that the N word
, yet I can't ride the subway or bus without hearing it used on a regular basis. So it's not the word itself, it's more context - yet we've all been so terrified we dare not even use the word even in a editorial or news reporting context.
racism
as a person of color i dont know who right or wrong. but if he was called a black bastard. and he was black and born out of wedlock would that be considered a racial remark. which according to the dictionary would be a viable statement if he was. or do they use the tone of your statement when you say it as racial. with the high rate of out of wedlock births that is a tricky judgement. the courts would have to rewrite the dictionary to claim discrimination. that could be a legal way to insult someone . much more hurtful and legal than the N word. ps as i say this to make people think. but to be racist is not to think or they would have used this loop hole 100yrs ago.
Messy indeed
A lot of releases like this have no-re-employment clauses - once you leave, you can't come back - for this reason (among others). If they guy had stayed terminated, and not been brought back - might've been a different decision here.
Or maybe not. I agree, this seems to be a case where the Court of Appeals was bending over backwards to find a way to get this claimant his day in court.
Maybe SJC will review...?
That's not exactly what the court said . . .
The court didn't say just because his boss dropped an n-bomb on him (whether or not preceded by "dirty effing") the release in the severance agreement is void.
The court did say that more evidence is needed to determine whether Harvard's behavior *after* he signed the severance agreement violated the terms of the agreement and freed him from his agreement not to sue.
The court did not undo the severance agreement or rule that it was void, but it sent the case back down to the trial court for more fact-finding.
If they told him -- and there's not enough evidence one way or the other to determine -- that they were going to get him another job, and then they gave him one that he told them he was totally unqualified for, and then fired him because he was unqualified, that breached Harvard's oral agreement (again, which there also wasn't enough evidence to determine one way or the other if one existed) to get him another job. And that agreement (if it existed) was part of the inducement into signing the severance agreement.
Why did he sign the severance agreement in the first place? What choice did he have? Would Harvard have negotiated the terms with him? Of course not. It was a take-it-or-leave-it contract where Harvard had all the bargaining power. Courts always give the regular guy the benefit of the doubt when they sign those contracts. Harvard's lawyers drafted the severance agreement, and this guy had an associate's degree and no lawyer helping him.
I agree
See my comments to Adam above. I misunderstood the opinion based on how I'd read what Adam initially wrote.
However,
"Courts always give the regular guy the benefit of the doubt when they sign those contracts."
Evidently not, right? Otherwise this wouldn't have made it to the Appeals Court in the first place. N'est-ce pas?
Touché
To paraphrase a h.s. sports taunt -- "God made the oceans, God made the lakes, God let the Superior Court grant summary judgment to the party with superior bargaining power in an adhesive contract case, we all make mistakes." If trial courts didn't make mistakes, the appellate courts wouldn't be so busy.
Is the n-word still offensive?
"The use of these disgusting, demeaning, and humiliating words, and the impact of their use upon those to whom they are directed, is a grave matter."
----
Really? The defense need only bring the "Tweets" of the deceased rap star from the earlier post to show the word is now thrown around like a term of endearment.
yes, it's still offensive...
... context counts for a lot. there is a huge difference between somebody using it as an "endearment", and a supervisor yelling the word to you in a statement meant to be demeaning.
Such questions . .
. . tax my day. Why- oh why- can't I say the "n" word too! They say it- they say it! Why can't I? Oh the heavy burden of political correctness bearing down upon me- limiting my freedom to scream racial epithets at people! The white man can't catch a break these days! I'm so oppressed!
Let's leave mind reading out of this
Read the arguments and debate them. Self righteousness can wait for another post.
Oh . . .
. . .yeah- thanks! Gonna waste a lot of time "debating" this with "cage". Get lost.
Ahh, yes
Brilliant response.
Conservative blowhards...
...like Fish and Dr. Laura are just dying to justify their desire to spout that word without fear of reprisal again -- just like in the good old days. Even if there has been an attempt to co-opt and defuse the word, it is still offensive when used for the purpose of being offensive -- and you know that damn right well. And, if the account is accurate, the word was prefaced by additional language that made the hate aspect very clear.
Even if the "N-word" isn't as "bad" as it once was by what you imply, let's put it this way, in a context that may be more near and dear to you. Saying "cop" isn't a bad thing. But if I say "dirty fucking cop" when I get a ticket I'm gonna guess you'd have something to say about it -- and I'd probably get a nice steel bracelet from the subject of my invective as well.
Context
http://www.youtube.com/watch?v=JZCS5I80X-8&feature...
And "n-word" is just as offensive to open-minded, thinking people as is "nigger." Grow up, people!
I don't necessarily think a
I don't necessarily think a trial is needed. Calling someone a N-word by most companies harassment policy is considered harassment and/or hostile work environment. There's laws already protecting this guy. Its a shame that HR at HVG didn't do a thing about it. Goes to show you how useless HR people are. It also makes me wonder about HVG in general, as my doctor is at HVG Kenmore.
What also surprises me is.. not to sound all racial, but.. there's a TON of black folks who go there. Not saying this is a bad thing, but I've just noticed this sitting in the waiting room. Surprising that a manager would say such a thing when their client base has a large African-American clientele thou.
I do agree he waived his rights to a trial when he signed the severance agreement. He shouldn't have signed it if he had ANY inclination that he was going to sue. He kinda lost his right to sue after he signed it. It sounds like he's looking for a quick payout now that he's out of work.
I, myself, have refused to sign severance agreements due to the wording of them. My last job attached a 10k severance package to mine. But since I didn't like that they were basically taking away my rights as a US Citizen if I signed it, I refused and gave up a 10k severance package out of sheer principal.
If you guys don't read these agreements you should, you'd be surprised at what's in them. This one company who's agreement I didnt sign, said I could not sue, could not talk bad about the company, could not work for any remotely close of a competitor. Yes these are pretty standard things, but I just believed my rights as a citizen were being taken away by signing this agreement.
So he signed it, and lost his chance to sue. Its pretty simple. there's reasons why companies make ppl sign these things.. and here's a clear reason why.
That term inflicts cruel
It also sours milk!
What a load of childish bull. A blasphemy law, basically.
Amen
Amen to that, bro.