Law Asked by Oliver on August 16, 2020
After the landmark Bostock v. Clayton County ruling, I am asking for a friend if he has an action against an employer who fired him for using the N-word on 3 occasions as well as uttering "my melamine-enhanced homie over here". The employee was visibly white, and neither party disputes that black employees regularly use such language and face no disciplinary action as a result.
From Bostock: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch wrote. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
It is obvious that he was fired for actions it would not have questioned (and has not) in members of a different race. Is this not exactly what Title VII forbids?
Bostock is irrelevant. Your friend can sue under Burlington v. News Corp.
Burlington answered this exact question ten years ago, using exactly the same, well-established logic used in Bostock.
Burlington involved a news anchor (Burlington) who was fired after using the N-word descriptively in a staff meeting. He sued under Title VII. He argued he was being discriminated against on racial grounds, since several Black employees had used the word at work without consequence.
The case was tried before a jury in Federal district court. Burlington lost after the jury decided the facts did not support his claim. However, the judge made clear that the actions he alleged would violate Title VII:
Historically, African Americans' use of the word has been ironic, satirical, or even affectionate. Too often, however, the word has been used by whites as a tool to belittle, oppress, or dehumanize African Americans. When viewed in its historical context, one can see how people in general, and African Americans in particular, might react differently when a white person uses the word than if an African American uses it.
Nevertheless, we are unable to conclude that this is a justifiable reason for permitting the Station to draw race-based distinctions between employees. It is no answer to say that we are interpreting Title VII in accord with prevailing social norms. Title VII was enacted to counter social norms that supported widespread discrimination against African Americans. To conclude that the Station may act in accordance with the social norm that it is permissible for African Americans to use the word but not whites would require a determination that this is a "good" race-based social norm that justifies a departure from the text of Title VII. Neither the text of Title VII, the legislative history, nor the caselaw permits such a departure from Title VII's command that employers refrain from "discriminat[ing] against any individual...because of such individual's race."
Added: Why Bostock is Irrelevant for Your Friend’s Case:
As you say, if we substitute the word “race” for “sex” in those sentences from Bostock, it seems obvious your friend would have a case under Title VII. This is true, but not because of Bostock. Bostock changed who could claim sex discrimination under Title VII, but nothing else. In particular, it did not change the test used to prove discrimination under Title VII. The sentences you quoted, use the well-established ”but for” test.
Here's Gorsuch’s explanation of how the "but for" test works:
In the language of law, Title VII’s “because of” test incorporates the “simple” and “traditional” standard of but-for causation. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.
The Bottom Line: Bostock is illustrative, but not dispositive, of your friend's claim.
Correct answer by Just a guy on August 16, 2020
Of course that friend can sue, but is very unlikely to succeed.
He hasn't been fired for using the n-word, but for using abusive language against someone because of their race. I expect a black employee would also be fired if they used abusive language against a white person, or an Asian person, or a Native American, because of their race.
The fact that black people use the same word towards other black people without being abusive (and a white person being called n****r would be more confused than insulted), doesn't matter, because it is not the word that he was fired for, but abusive language.
So unless there is a policy that only white people are fired for using abusive language, there is no discrimination.
Answered by gnasher729 on August 16, 2020
The fact that "black employees regularly use such language and face no disciplinary action as a result" is evidence of race-based employment discrimination. If you insert "race" where Bostock v. Clayton County has "sex", you would get the result that consideration of race is forbidden. The sections of the anti-discrimination law cited there include "race" in the list. Bostock has more discussion of the word"sex" since it was also necessary to arrive at a connection between "sex" and "sexual orientation": that is unnecessary in the case of sex. See especially the rationale regarding "because of" which, again, applies to race discrimination. The employer does not take the state that the slur is a universally-forbidden word on the job, it is forbidden only if used by members of certain races.
However, to get anywhere with this suit, the plaintiff would have to establish that the employer knowingly tolerated such behavior from black employees. If other employees got away with it behind the bosses back and he was the first to get caught, then there is no proof of discrimination.
Answered by user6726 on August 16, 2020
I don't see a case under Bostok there. The N-word is not associated with sex or sexuality. Bostok can't help you unless it's a sexuality case. In this case, we have a firing because someone was a white Bigot. He used the N-word, which is an insult, just as "my melamine-enhanced homie over here" shows the same sentiment towards people of color. The word might have got a split meaning, depending on what you look like, but it is a word nobody should use anmore.
On the face, the reason for the firing thus is not the sexuality, making Bostok inapplicable, but it is his speech and demeanor, which his boss deemed to be unbecoming of his job and of which he seems to have warned about several times as you tell:
who fired him for using the N-word on 3 occasions as well as uttering "my melamine-enhanced homie over here".
So I assume he was told not to use the word and he still used it. That is not title VII discrimination on the face of discrimination based on sex and he had his writeups - the next escalation is firing.
We don't know if the other employees told the boss about his conduct but not rat out the other employees - which would shield him from discrimination of race because he doesn't need to discipline about conduct he doesn't know. If he does know, there might be a case under Burlington v New Corp as Just a Guy explains, but said case might also not exist because the employer might point out that he insulted his coworkers and harmed the work environment and has been deemed abusive of his coworkers. That would not be a Title VII violation.
Your friend better should check his vocabularies: many years have passed since Tom Sawyer and Huckleberry Finn were written and the N-Word was even in the least socially acceptable! Dictionaries remark since more than 150 years that it is a derogatory term, and before it was well known to be a derogatory word since the first known mention in a surviving text of 1574. In fact...
The word was first included in a Merriam-Webster dictionary in 1864, at which time it was defined as a synonym of Negro, with a note indicating that it was used "in derision or depreciation."
Answered by Trish on August 16, 2020
You could. However civil rights lawsuits of any kind have a low success rate. Especially in weak case like this.
Of the cases that go to trial, 95% favor the employer. Of course there could be a settlement, but a settlement does not have to relate to the merit of the case.
Answered by user24670 on August 16, 2020
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