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.

Click here to return to our library

When Words Mask Discrimination

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.

Click here to return to our library