Are You Sure You Don't Discriminate

May 1, 1997
Thankfully, most employers have eradicated outright racism, sexism, ageism and such in the workplace. They've made clear that certain language and actions won't be tolerated. They've instituted diversity programs, rid themselves of the few bad apples.

They're not done. That's because some employees haven't changed their attitudes; they've just gotten smarter about voicing their prejudices. Instead of blatant derogatory remarks about certain groups of people, they use "code words": seemingly neutral phrases that carry negative connotations, but aren't as likely to come to managers' attention.

This type of language better start coming to management's attention. The U.S. Court of Appeals for the Third Circuit has ruled in a recent case that these code words can create a hostile environment. The result: Just because employers have eliminated blatant Title VII violations doesn't make them safe. It's the subtle, quiet discrimination—the kind managers don't always hear about—that can send companies to court.

James B. Brown, director of Pittsburgh-based law firm Cohen & Grigsby, P.C., explains the case and offers advice on preventing such claims.

Can you explain the basics of Aman v. Cort Furniture Rental Corp., the case that set this precedent?
Basically what happened is two [African-American] employees of the Cort Furniture Co. filed a lawsuit in the federal district court claiming they were being racially harassed and discriminated against in the workplace. They were unable in their complaint to produce any direct evidence of racial discrimination, harassment or of a hostile environment. What I mean by direct evidence is people using well-known, overt, racially derogatory remarks.

What was their case based on then?
There had been other words and phrases [allegedly] used in such a context that really did indicate racial animus or discrimination. These were terms such as "those kind," the "poor people," "one of them," "another one." Phrases were used such as, "Don't touch anything in customers' homes," "Don't steal," when talking to these folks. Finally the straw that broke the camel's back: The controller of the company [allegedly] told one of the two plaintiffs, "If this continues, we're going to have to come up there and get rid of all of you." When he was asked what "all of you" means, the controller didn't answer. The federal district court dismissed the plaintiffs' case. The court said there was no direct evidence of harassment or discrimination.

The plaintiffs appealed the decision?
The case was then appealed to the Circuit Court of Appeals, the level between the trial court and the Supreme Court of the United States. The Third Circuit revisited the situation and basically described these words and phrases used as code words. The court said the remarks were inherently racist and part of a pervasive racial discrimination at the furniture company. The court said that even though Title VII of the Civil Rights Act doesn't prohibit racist thought, the law does require the employer to prevent such views from affecting the work environment. Title VII doesn't tolerate racial discrimination, be it subtle or otherwise.

Should employers have a policy regarding code words?
Every company in America today should have a policy against sexual harassment, race discrimination and racial harassment. Within those very policies should be language that makes it quite clear that not only does the company prohibit overt racial, sexual and age discrimination and harassment, but it also [forbids] subtle harassment and discrimination.

So this ruling goes beyond race?
It goes beyond race discrimination and harassment. It also goes to sexual harassment and a hostile sexual environment. If an employer has, as many industries do, certain departments filled by all women, words like, for example, "our little mothers," "the girls' club." Those kinds of words can and will, it's my opinion, be seen by the courts as the kind of terms that are subtle discrimination.

Can just one person using such words jeopardize a company?
It only takes one person. But employers are certainly not without protection. If an employer has a good grievance procedure whereby employees can go to the HR department and complain without fear of retaliation, then the employer is [better] protected, because the employer can investigate, determine whether this is happening and react. It's employers without mechanisms by which employees can complain and voice their problems that are in trouble, because then there's no excuse.

So let's say an employer has a good grievance procedure and someone is found to be using this language. What should the employer do?
The employer reacts. That's the key, because when I get one of these cases in court and need to defend it, the first thing the plaintiff always says is nobody reacted. It's always wonderful as defense counsel to be able to say, "Well, you didn't tell anybody." [But] if the plaintiff says, "How could I? There was nobody to tell," then the employer is in a very awkward and very bad situation as it relates to liability.

Does the ruling open the door for more discrimination suits?
I don't believe this will in and of itself create more litigation. Basically what this whole code-word case does is enable plaintiffs to bring in evidence that they were heretofore unable to bring in. Previously most courts wouldn't permit testimony as to the kinds of words we have been talking about, because the courts said those are stray remarks; they're racially neutral—"those people"—what does that mean? Here, the Third Circuit Court of Appeals said employers can't look at this thing in a vacuum; this is just not a vacuum. Employers need to look at this within the confines of the entire situation.

So these cases may be easier to prove now?
I think what [the ruling] will do is make it harder to defend existing and future litigation. It makes the job easier for plaintiffs now. One would be foolish to limit this just to racial discrimination and harassment. This will cover the entire [range] of discrimination and harassment cases. Employers shouldn't be fooled by thinking there isn't as much racial discrimination as there was before. On the contrary. This case came down because there's just as much race discrimination in the workplace. People have just gotten smarter about it. Nobody uses those highly repulsive, derogatory remarks anymore. What they use is code words. People have just become better discriminators.

Workforce, May 1997, Vol. 76, No. 5, pp. 101-104.