Nigger: The Strange Career Of A Troublesome Word (10 page)

Mr. Brown was very lucky; other appellate courts might well have decided the case differently. For one thing, appellate courts generally defer to the factual findings of trial judges. But in this case—though without expressly saying so—the appeals court declined to accept Judge Lee's findings of fact. Whereas Judge Lee had explicitly discredited Brown's testimony about hearing the supervisor refer to him as a “little nigger,” the appellate court cited this very testimony as the predicate for its conclusions that the supervisor was racially
biased and had contaminated EMEPA's decision making with his prejudice.

The probable mainsprings of the decision in
Brown
were an appreciation of the likelihood that extraordinary scrutiny had been focused upon EMEPA's first black serviceman; a realistic sense that he was bound to receive more than his fair share of white customer complaints regardless of his actual conduct; distrust of the trial judge's perception of the situation; and, outweighing any other single consideration, a deep reluctance to rule in favor of a white employer whose place of business echoed with
nigger
references. “At the heart of this appeal,” the appellate court declared, “is the significance of [the supervisor's] routine use of the term
nigger.”
⁷⁸
Contradicting the defendant's dismissal of such language as “isolated remarks,” the plaintiff had succeeded in persuading the appellate court that the supervisor's use of
nigger
constituted “direct evidence” of illegal racial discrimination. Direct evidence is evidence that, if believed, proves a fact without inference or presumption. It precludes the necessity of inferring whether a challenged action constitutes (in this context) racial discrimination, because it
compels
that conclusion.

Given the protean character of
nigger
, which may signal several different (even contradictory) meanings, it is probably erroneous to conclude that the word itself
necessarily
furnishes proof of racial discrimination, even when the speaker is white and the target black. Automatic labeling of
nigger
may be an efficient shorthand method for judicially assessing the N-word—a method whose inevitable mistakes may be tolerable
given the savings it affords in labor and time. Perhaps in the context of antidiscrimination law at the workplace, moreover, it is better to err on the side of overenforcement rather than underenforcement. Still, even if that is so, it is important to remember that the N-word is not self-defining. Its actual meaning in any given instance always depends on surrounding circumstances. Deriving an understanding of
nigger
thus always requires interpretation.

The second category of Title VII cases featuring
nigger
comprises lawsuits alleging that an employer has either knowingly or negligently condoned a racially hostile workplace environment. One such suit was filed by James H. Spriggs, an African American who worked at the Diamond Auto Glass Company in Forestville, Maryland, as a customer service representative in the
1990
s.
⁷⁹
Spriggs left Diamond because of what he viewed as the company's inadequate response to misconduct on the part of his supervisor, a white man named Ernest Stick-ell. According to Spriggs, Stickell, in his presence, constantly referred to African American customers and employees as monkeys and niggers. Stickell himself was married to a black woman, but according to Spriggs, she, too, was subjected to her husband's racial vilification. Stickell referred to her as a black bitch and directed racial slurs at her in agitated phone conversations that Spriggs said he could not help but overhear. Angered, Spriggs quit Diamond but returned after the company's management assured him it would force Stickell to clean up his language. Spriggs maintained, however, that Diamond failed to make good on its promise and that Stickell's verbal conduct did not improve; indeed, in Spriggs's view, his
supervisor's behavior worsened. Stickell continued to describe his wife in racially derogatory terms and repeatedly called Spriggs a monkey and a nigger to his face. Spriggs claimed that Stickell also inserted between pages of a manual that he (Spriggs) regularly consulted a picture of a monkey, with a notation that read, “So you'll never forget who you are.”
⁸⁰

Spriggs eventually resigned and sued, charging that he had been victimized by harassment that created a racially hostile workplace in violation of Title VII. In order to prevail, he would have to satisfy both a subjective and an objective requirement: he needed to show that he himself had actually perceived the work environment to be abusive and that a reasonable person would also view it thus.
⁸¹
According to the Supreme Court, “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment … is beyond Title VII's purview.”
⁸²
The “mere utterance of an… epithet which engenders offensive feelings in an employee” is insufficient grounds;
⁸³
the conduct objected to must be sufficiently bad that “a reasonable person” would find it to be intolerably hostile. Many judges demand that “reasonable people” be thick-skinned and have a high threshold for tolerating irksome, even deplorable, conduct. Spriggs drew such a judge. United States District Court Judge Frederic N. Smalkin granted summary judgment to Diamond, holding that, even assuming that his factual allegations were accurate, Spriggs's suit failed as a matter of law. But the Fourth Circuit Court of Appeals reversed, remanding the case for trial. The appellate court concluded that the language Spriggs had found
objectionable was sufficiently injurious to be deemed a violation of Title VII if, upon trial, his allegations were determined to be true. Central to the court's ruling was the special place of
nigger
in the lexicon of verbal abuse. “Perhaps no single act,” the court remarked, “can more quickly alter the conditions of employment and create an abusive working environment than the use of… ‘nigger’ by a supervisor in the presence of his subordinates.”
⁸⁴
Elaborating, the court averred that “far more than a ‘mere offensive utterance,’ the word ‘nigger’ is pure anathema to African-Americans.”
⁸⁵

Hostile-workplace litigation—like every other kind—is frustrating, expensive, and risky. Corporate employers are liable for abuse committed by their employees, but only if they are put on notice that such abuse is occurring. This poses a dilemma for victims. If they repeatedly report abusive behavior by co workers, they may improve their chances of obtaining legal relief in the event of litigation, but they also run the risk of poisoning relations with colleagues and alienating supervisors. Compounding this conundrum is the difficulty of predicting whether or not a court will see the reported misconduct as unlawful. No bright line authoritatively distinguishes mere rudeness from illegal abuse; drawing the line is a matter of judgment, and judgments vary.

Consider the plight of James L. Bolden Jr., an African American who worked as an electrician for eight years for PRC, Inc. Long tormented by his coworkers, Bolden finally quit and sued his employer. He alleged that his coworkers had constantly called him “faggot,” “fool,” “dickhead,” and “dumb-shit;” that one coworker had walked over to his work area and
farted directly at him; that several others had said “nigger” in his presence; and that on one occasion a colleague had warned, “You better be careful because we know people in [the] Ku Klux Klan.”
⁸⁶

A federal district judge, affirmed by a court of appeals, ruled that even if Bolden's allegations were accurate, they failed as a matter of law to constitute the predicate for a hostile-work-environment claim. While the judges acknowledged that the racial abuse alleged was deplorable, they found that it was insufficiently deplorable to trigger the remedies contained in Title VII. Echoing established doctrine, the judges declared that a plaintiff must prove more than the occurrence of “a few isolated incidents of racial enmity” or the utterance of “sporadic racial slurs.”
⁸⁷
What a plaintiff needed to show, they suggested, was “a steady barrage of opprobrious racial comments.”
⁸⁸
In the judges’ view, Bolden's complaints fell far short of this threshold. “The blatant racial harassment,” they pointed out, “came from only two of his co-workers on a couple of occasions,” and the “racial jokes and slurs were infrequent.”
⁸⁹

The appellate judges who affirmed dismissal erred in ruling that, as a matter of law, no reasonable juror could find for Bolden based on the evidence he presented. They saw a wholly one-sided case when they should have seen a more complicated controversy. The evidence was such that reasonable jurors could have disagreed—meaning that the judges should have permitted a jury to resolve the dispute.

In light of the outcome in Bolden's case, can a plaintiff successfully sue if he or she is referred to “only” once with hostility
as a nigger? How about twice? Or three times? At what point does race-baiting on the job become illegal? The only way to answer such questions sensibly is in terms of probabilities, taking into account such considerations as where a lawsuit is filed and before which judge the suit will be heard.
⁹⁰
While certain judges stress that episodic misconduct is usually insufficient to support a hostile-work-environment claim, others make rulings and generate rhetoric friendlier to plaintiffs, including the observation that “even a single episode of harassment, if severe enough, can establish a hostile work environment.”
⁹¹

Linda Jackson's fate, like Bolden's, exemplifies the variability of different listeners’ assessments of
nigger
even in the context of federal statutory law. Jackson sued the Quanex Corporation of Detroit, Michigan, alleging that it fostered a racially hostile work environment.
⁹²
To make her case, she introduced evidence that racial slurring insulting to blacks was rife in the workplace. She testified, for example, that at a staff meeting a superior stated, “We are up to our asses in nigger sludge.”
⁹³
Jackson also introduced evidence that racist graffiti was prevalent and that white workers constantly attempted to sabotage or otherwise injure their black colleagues. In one incident, a fellow worker had called Jackson a nigger bitch and physically assaulted her. In the aftermath,
both
workers had been suspended for three days, and Jackson had been denied the opportunity to work overtime.

United States District Court Judge Avern Cohn disposed of Jackson's case by granting judgment to the defendant. He found that in some instances the company had not been notified
of objectionable conditions and that in others management had responded adequately. Judge Cohn also stressed that several of the racist acts that Jackson had entered into evidence either had not occurred in her presence or had not been directed at her, and that several of the actions she was objecting to were so commonplace at Quanex as to have become “conventional conditions on the factory floor.”
⁹⁴

A federal court of appeals reversed Judge Cohn in an unusually harsh ruling that branded his view of the relevant law and facts as “myopic.” According to the appellate court, Judge Cohn had erroneously chopped the evidence into unconnected bits that robbed the plaintiff of a fair chance to show that, in their accumulated totality, the individual episodes and incidents constituted an ugly portrait of intolerable racial hostility. Unlike the trial judge, the appellate judges deemed the defendants’ reactions to racism on the factory floor to be both tardy and deficient, insofar as management had made no effort whatsoever to discover the identity of those behind the graffiti. And unlike the trial judge, the appellate judges focused not on what had been reported to management by victims but instead on what management actually knew or should have known about racial abuse among its workers. Finally, the appellate court took strong exception to what it saw as “potentially the most disturbing” aspect of Judge Cohn's ruling: the “decision to minimize proof of persistent racial slurs and graffiti at Quanex” on the grounds that their very prevalence made them less rather than more problematic as a legal matter. Averring that Judge Cohn's reasoning reflected an unseemly class bias that would impose lower
demands on blue-collar than on white-collar worksites, the appellate judges “squarely denounce[d] the notion that increasing regularity of racial slurs and graffiti renders such conduct acceptable, normal, or part of ‘conventional conditions on the factory floor.’ ”
⁹⁵

Were the appellate judges correct with respect to this last point? Yes, they were. It would have been a mistake to have offered safe harbor to racially abusive language because such language was pervasive and customary at a given worksite. To have done so would have encouraged inertia when clearly the express aim of Title VII and similar statutes is to uproot racist custom.
⁹⁶
This was not a case in which a defendant was contesting whether a particular usage of
nigger
should be deemed insulting; here that was conceded. Rather, the defendant in Jackson's case was arguing that, given the facts she alleged, and given the law of Title VII, no juror could reasonably conclude the plaintiff had been subjected to racial harassment that was sufficiently bad to warrant legal relief. That is an argument that the defendant rightly lost.

A fourth setting in which
nigger
arises as a focal point in litigation involves cases in which the judge must decide whether certain evidence that one party wants to offer to the jury should be admitted. The party seeking to exclude the evidence from the trial argues that it is more prejudicial than probative—or in layman's terms, more likely to impede than to advance the search for truth, in that its inclusion is inessential to a sound adjudication of the facts in dispute and will poison
the minds of the jurors, making them unable to attend fairly to their task. Examples abound of
nigger
in this context.