Employers Can be Liable for Racist Language Even If Unintentional

If an employer uses language in the workplace that evokes racial stereotypes, does that automatically constitute harassment and a hostile work environment, even if no discrimination is intended? This is at the heart of a lawsuit currently before a federal court in Reno, Nevada.

Racial Discrimination or “Lack of Sensitivity”?

The case was brought by Armand Appling, an African-American chef formerly employed by the Mustang Monument Wild Horse Eco-Resort, which is owned by Madeline Pickens. In his complaint, Appling claims he was fired in 2014 in retaliation for complaining about the hostile work environment allegedly created by Pickens due to her regular use of racist language.

Appling says that when Pickens recruited him from a Southern California country club she also owns to run the kitchen at the dude ranch, he was told to cook “black people food” for guests – fried chicken, BBQ ribs, and cornbread. His lawsuit claims Pickens used this kind of language frequently. She called one of his kitchen staff her “bull” or “ox”, and said another had “too much personality.” Pickens later asked Appling to fire those employees because they didn’t “look like people we have working at the country club” and failed to “fit the image” of the dude ranch’s staff.

In their lawsuit, Appling’s lawyers say calling an employee her “ox” or “bull” is racially charged given “America’s long history of slavery where [African Americans] were considered personal property of their owners.” And phrases such as “they do not fit the image” have historically been used to exclude African-Americans and others from private clubs and resorts.

For her part, Pickens, through her lawyers, has countered that even if she made the alleged comments, they were not racially motivated. Rather they “reflect a non-racial personality conflict and amount to discourtesy, rudeness or lack of sensitivity” – which does not, in itself, constitute harassment or a hostile work environment. They also say it is common in the food industry to classify cuisine according to its heritage – i see this.e. Chinese food, Indian food, etc. – and doing so should not be seen as using racist language.

Judge Sides with Employer – For Now

So far, U.S. District Judge Miranda Du, who is hearing the case, seems to be siding with Pickens. In a recent hearing she noted Appling and his lawyers have not presented enough evidence to support the claim of racial discrimination, harassment, or hostile work environment. She told Appling’s lawyers “It takes a lot to prove these allegations.”

At that hearing in January, Du dismissed Appling’s original suit but said he could file an amended complaint by January 13 if he had stronger grounds to present for a lawsuit. Appling did so on January 12, which means the case is not over yet and it remains to be seen how the judge ultimately rules.

Employers: Watch Your Language

No matter the outcome, this case should serve as an object lesson to employers about the potential liability they face for racist language in the workplace. Though, as Judge Du has noted, the burden of proof is high in these types of cases, it can be met if there is enough evidence that the use of language evoking racial stereotypes is creating a hostile work environment for employees.

The Pickens case seems to turn on whether or not the language she used was racially motivated. This may or may not have been her intent, but not understanding that one’s actions are harassing or discriminatory is not a defense. An employer can still be found liable if, though unintended, the way they speak to or describe employees involves the use of racist stereotypes.

Federal law is clear that employers must provide a workplace that is free of harassment and discrimination. Being conscious of the kind of language that is used is a very important component of this, as are written policies and procedures that specifically address the matter.

At Shelton & Deon we counsel Michigan employers on a wide range of labor and employment issues, including preventing harassment and discrimination, and mitigating liability. We would be happy to discuss your situation.

Posted in In The News.