“Ask Sheila” Column

Dear Sheila,

We have received an internal complaint at our company where a Black employee accused another Black employee of using racial slurs against her. The accused employee defended herself by saying that she felt these are acceptable words to use among Black people, and would only be unacceptable if someone of a different race used them. Is this something we should discipline for and/or something the company could be liable for?

Sincerely,
Employee Relations Manager

Dear ERM,

The short answer is yes, you should take this seriously, without regard to whether the parties are the same race. There have been several cases over the years addressing race-based discrimination and harassment claims among members of the same race. A federal appeals court upheld a six-figure jury verdict based on a Black employee accusing a Black supervisor of addressing him with the n-word and “black boy.” As a whole, these cases have taught us:

• Title VII of the Civil Rights Act, and likely your policies, prohibit harassment “based on race.” Courts hold that because these comments would not have been made to someone who was not Black, they are “based on race” and the fact that the person saying them is Black also doesn’t change that.
• This analysis holds true with other protected classes. We know that women cannot make unwelcome sexual comments to other women in the workplace, and older people cannot make ageist comments to other older people.
  While it is true that a jury might find that the comments are not as severe when made by someone of the same protected class, employers should not rely on that, and should be consistent on prohibiting these comments in the workplace, regardless of who is making them, or what their intent is.
• Race based discrimination can take many forms, and none are appropriate. Another interesting line of cases focus on discrimination against Black employees with darker skin in favor of Black employees with lighter skin. In a case out of a company in Atlanta, where the two applicants for promotion were Black, and all the decision-makers were Black, a court found that choosing the lighter-skinned applicant because of skin color violated Title VII, because the law prohibits discrimination based on “color” as well as race.

“Ask Sheila” is prepared by Sheila Gladstone, Chair of the Firm’s Employment Law Practice Group. If you would like additional information or have questions related to this article or other employment matters, please contact Sheila at 512.322.5863 or sgladstone@lglawfirm.com.