A supervisor criticizes an employee, referring to the female clerical worker as "another foolish person whom we shouldn't have hired." The employee, in turn, feels that the supervisor's criticism is, in effect, a form of racial harassment.
I don't know what the supervisor meant by his unfortunate choice of words; however, his criticisms should have referred only to the employee's.
Obviously upset by those words, the employee consulted a lawyer who subsequently informed her that she had been victimized by racially charged code words. The lawyer said he would be happy to sue the woman's supervisor and his employer under Title VII of the Civil Rights Act.
A crazy scenario? Not really. For many years the law has required that the workplace be free of explicit racial epithets; however, meeting those minimum requirements is no longer sufficient. Employers, human resources executives and supervisors must now make sure that the workplace is free of any words that can be cons1d as racial code words.
The Court of Appeals for the 3rd Circuit clearly spells this out in Aman v. Court Furniture Rental. The court stated that racially implicit code words can indeed create a workplace environment that violates the civil rights of employees.
The court further 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."
DONT BE A TARGET
What can employers and human resources executives do to avoid being the targets of such suits?
To begin, racial epithets, implied or explicit, have no place in the workplace and should be extirpated by all responsible employers. While no employers had been informed, by either legislatures or judiciaries, that such expressions as "you people," "poor people like you" and "one of them" are racial code words, the Court of Appeals stated that those specific words can be evidence of a pattern of conduct that indicates a hostile work environment. Therefore, it is up to individual organizations to be proactive in preventing such expressions.
The rules of the workplace have certainly changed, and human resources executives have a new responsibility to make sure that all new hires, especially supervisory personnel, understand what constitutes racial code words.
In order to avoid being targets of lawsuits under Title VII of the Civil Rights Act, every company should formulate an employee policy on the use of code words. The policy should give examples of code words to be avoided, such as those noted in the box to the left, and establish a complaint procedure in the event that such words are uttered. In addition, each company should make all supervisory personnel sensitive to possible interpretations of subtle code words and train them to "nip such problems in the bud" so they can correct potentially inflammatory situations before they give rise to legal issues. Furthermore, each company should be prepared to conduct seminars or initiate other means of communication (written or verbal) for teaching employees about how to avoid the use of offensive words. Finally, each company must regularly communicate to all of its employees that any violations of code-word rules will result in termination or other sanctions.
Altogether, employees and employers should avoid racial code words in the workplace, not only because such expressions will result in a racially charged and hostile work environment that will significantly reduce productivity by diminishing worker morale, but because the utterance of such words will probably result in expensive and time-consuming litigation as well as enormous judgments.