November 26, 2013
The use of a racially offensive term by a member of that race against another member of the same race can constitute illegal harassment, as the jury found in the recent federal case of Johnson v. STRIVE. The employee, who is Black, sued her employer and her Black supervisor under the New York City antidiscrimination law and Section 1981 of the Civil Rights Act of 1866 (which protects the rights of citizens to make contracts, including employment contracts, regardless of race). Part of her evidence was a 4-minute recording of her supervisor's profanity-filled rant at her, which the employee secretly captured on her iPhone. Part of his rant included the following: "And I'm not saying the term n----- as derogatory; sometimes it's good to know when to act like a n-----, but y'all [the employee and another former employee] act like n------ all the time . . . both of you very bright, but both y'all act like n------ at inappropriate times." At trial, the supervisor tried to defend his use of the n-word as part of a "tough-love" culture, and said that he was only trying to help the employee. Like the employee, the jury found his use of the word to be racially harassing, even though both the supervisor and employee are Black. It awarded the employee $280,000 in compensatory and punitive damages. The lesson for employers is that racially offensive terms have no place in the workplace at all, even if they are used by members of that race.