Racial Code Words

It is no secret that many of today's bank tellers are women and people of color. Unfortunately, many of them are being terminated because of downsizing that has resulted from mergers, while still others are being replaced by the marvels of technology.

Terminated employees, unable to find new jobs, may seek judicial means of remuneration. Many are tempted to bring law suits charging age discrimination, sexual harassment and racial discrimination. In the past, the rules governing such suits have been quite clear. But now the rules are rapidly changing, and unwary employers may soon be the targets of highly expensive litigation. The reason is that a recent U.S. Court of Appeals ruling has dramatically changed the legal landscape, lowering the barriers for contemporary litigants so they can more easily sue their employers for racial discrimination than in earlier times.

For many years, it had been the law that the workplace be free of explicit racial epithets; however, that is no longer sufficient compliance. Employers, managers and supervisors must now make sure that they refrain from any words that can be cons1d as racial code words, even if one considers such words, on their face, to be benign.

Now, employers no longer have to express explicit racial comments to be the targets of actions brought under Title VII of the Civil Rights Act. Instead of voicing ugly racial epithets, one need only use such expressions as you people, poor people like you or one of them. All those expressions can now be considered racially charged code words that can land any bank, its managers and executives in legal hot water.

According to a federal case known as Aman v. Cort Furniture Rental, which has strong implications for the banking industry and was recently decided by the Court of Appeals for the Third Circuit, racially implicit code words can create a workplace environment that violates the civil rights of employees. The court found that racial code words can be used to establish an environment of racial discrimination.

Guarding the Workplace

The Court of Appeals stated that "while Title Ⅶ does not prohibit racist thought, the law does require that employers prevent such views from affecting the work environment....Title VII tolerates no racial discrimination, subtle or otherwise."

"While legislators have not written new laws about expressions that can be cons1d as racial code words, the Court of Appeals has made it clear that such expressions as you people, poor people like you, and one of them are indeed evidence of racial code words. It is, unfortunately, yet another example of the judiciary usurping the role of the legislative branch of government. In making that decision, it has put banks and others on notice that they must institute programs to prevent the expression of such words. Neither ignorance nor a lack of malice will be mitigating circumstances. If the words cited above (as well as others) can be interpreted as racial code words, then employers can be the targets of highly expensive litigation.

The rules of the workplace have not only changed, they have become slippery and open to individual judiciary interpretations. In order to avoid being targets of law suits under Title VII of the Civil Rights Act, all employers will have to formulate an employee handbook policy on the use of code words, give examples of code words that must be avoided, make supervisory personnel sensitive to possible interpretations of subtle code words, train them to correct such situations promptly, set up seminars or other means of communication for teaching employees about how to avoid the use of code words, and further, let employees know that any violations of such rules may result in termination or other sanctions.

As our civil rights laws evolve through judicial interpretation, it is essential that all preventive measures be taken not just to demonstrate one's good faith efforts, but also to maintain a strong defensive position. If one does not, then surely this will expose the industry to a stream of plaintiffs whose legal bounty will have negative effects on profitability.

A racially charged and hostile work environment can not only significantly reduce productivity by .diminishing worker morale, but it can also cost a bank large sums of money in litigation and subsequent settlements.

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