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Fired for using “n-word,” reporter then sues for race bias

November 10th, 2014  |  Joy Waltemath

About 18 months ago, I wrote a post asking whether employers would fire an employee for using the n-word.  I looked at a slice of relevant case law and concluded that, despite what seemed to late, ineffective, or no discipline at all for reported n-word usage in those cases, employers that did discipline and/or terminate individuals who used inexcusable racial language in the workplace likely were not the ones getting sued.

OK, so they fired him. But then I came across the case of the white male Fox TV reporter who was fired after he used the “n-word” (in a non-pejorative manner) while discussing a story during a newsroom editorial meeting. And he did sue his employer. Denying the employer’s motion for summary judgment, the court said management was aware that the reporter was being judged by a social norm deeming it acceptable for African-Americans, but not whites, to use the n-word. Treating it under the cat’s paw theory of liability, the court found a triable fact issue as to whether the TV station negligently permitted the discriminatory animus of one co-anchor (among others) to influence the firing decision.

The n-word incident. During the editorial meeting, the racially diverse coworkers discussed a story about an NAACP Youth Council that was holding a symbolic burial for the n-word. Participants at the burial reportedly used the word “at least a hundred times or more,” prompting the employee to ask: “Does this mean we can finally say the word ‘ni**er?’” One African-American colleague replied, “I can’t believe you just said that!” Other attendees were also offended, as were others in the office as reports of the meeting spread, and even though he apologized, his black co-anchor reportedly told him “because you’re white you can never understand what it’s like to be called a ni**er and that you cannot use the word ‘ni**er.” He was suspended, issued a final warning, and required to take sensitivity training.

The newsroom leak. That was not the end of the matter. Instead, a local newspaper published a story about the employee’s suspension for his reportedly “‘bizarre’ and ‘shocking’ sermon in which he insisted there’s nothing wrong with a word most commonly referred to as ‘the N-word.’” Of course, this story got picked up by other print and online media outlets. No investigation was conducted into the leak, even though the leak violated the station’s policies. The reporter was not allowed back on the air and his contract was not renewed. He sued, and ultimately his Title VII cat’s paw race discrimination claim survived a summary judgment motion (including an interesting discussion about whether cat’s paw cases survive given the tension between Staub and Vance, as well as a discussion of vicarious liability for acts outside the scope of employment under Sec. 219(2)(d) of the Restatement (Second) of Agency).

Should anyone say that word? Essentially, the court found evidence that the employee’s co-anchor acted with discriminatory animus based on her belief that African-Americans, but not whites, could say the n-word in the workplace. She encouraged other workers to complain about the employee. Even after he completed sensitivity training and was awaiting reinstatement, she continued to complain, intervening with HR to say she had heard from black journalist associations and from people on the street about the employee’s language. There was evidence she intended to, and did, cause the station to change direction — from planning to reinstate the employee to letting his contract expire – because two days later, he was told that his contract would not be renewed.

In allowing the case to go to a jury, the court also found a fact issue as to whether the station was negligent, noting the employee had no opportunity to defend himself during the investigation, nor was there any investigation into who leaked information about the editorial meeting to the media, which then created adverse publicity that resulted in his firing. Instead, it seemed to the court that the station “simply rubberstamped” the co-anchor’s desire to see him fired.

What would you do? Is this a “damned if you do, damned if you don’t” scenario? Should you have an absolute prohibition on the use of the word? A straightforward policy barring anyone from saying the n-word could have protected the employer to some extent here, but is that realistic in a newsroom, an educational setting, or for any media business? Earlier this year, for example, the NFL considered and rejected a specific ban on the use of the n-word, finding instead that its existing unsportsmanlike conduct rule, which covers “abusive, threatening or insulting language, or gestures to opponents, teammates, officials or representatives of the league” was sufficient. The academic community has grappled with the word in the educational context; see here and here.  Context obviously matters. What about who is speaking?  Determining the correct approach requires careful thought and cultural competence. Don’t let your managers make this decision on their own.