posted by Leora Eisenstadt
As I mentioned in my prior post, I am thinking a lot right now about the intersection between identity and linguistic meaning as it impacts employment discrimination. In my last post, I wrote about the Seventh Circuit’s view of the word “bitch” and its failure to mention the relevance of the gender identity of the speaker of that word when considering its contextual meaning. I recently posted a draft of my article on this topic, “The N-Word at Work: Contextualizing Language in the Workplace,” on SSRN. The article primarily deals with the “n-word” but makes the broader point that linguistic meaning is a product of numerous contextual factors including the racial, gender, religious, etc. identity of the speaker and listeners.
“The N-Word at Work” argues that there is a widening gap between the use and meaning of words in modern American culture and courts’ treatment of those words. This is particularly true in the case of derogatory slurs and phrases but is equally true for discriminatory language in general. For example, in American culture, it is a virtually universally accepted reality that a word, like the “n-word,” can have horrific or endearing meanings depending on the identity of the speaker and other contextual factors. There is a striking difference between a white man using the word with his colleagues and a black man using it among his friends. But given Title VII’s prohibition of different treatment on the basis of race, the white man’s use of the term raises difficult questions about whether he can claim protection from discipline under Title VII’s reverse race discrimination jurisprudence.
Nonetheless, both the legal literature and judicial system have largely ignored this problem of language in discrimination cases. Perhaps sensing an emerging problem in the lower courts, in its 2006 decision in Ash v. Tyson, the Supreme Court devoted a single, vague sentence to the meaning of language in discrimination cases. Despite this, the problem persists among appellate and district courts alike.
My article calls attention to this issue by examining the uses and meanings of discriminatory language in modern culture and advocates a theory of meaning that relies on the context in which it is used, the identity of the user, and the social, historical, and cultural framework in which the language developed. The article highlights the mistreatment of language by trial and appellate courts and tracks the troubling history of Ash, which was finally resolved in December 2011 after two trials, a trip to the Supreme Court and four reviews by the Eleventh Circuit. Finally, the article suggests solutions to this seemingly intractable problem, including the need to (1) recall the purposes of anti-discrimination law and the permissible non-literal applications of that law, and (2) permit and encourage the use of extra-legal expert testimony akin to social framework evidence that could translate the cultural realities of language for courts.
Any comments on the topic in general and the solutions I offer would be helpful as I am currently revising the article and am working on my next project, which deals with the changing nature of identity and the “protected class” paradigm in discrimination law.
posted by Leora Eisenstadt
I am thrilled to be guest-blogging for Concurring Opinions for the month of August. For my first post, I thought I would draw your attention to an interesting case out of the Seventh Circuit last month. In Passananti v. Cook County, the court considered a hostile work environment sexual harassment claim brought by an investigator for the Cook County Sheriff’s Department. The primary issue on appeal was whether the “frequent and hostile use of the word ‘bitch’ [was] a gender-based epithet that contributed to a sexually hostile work environment.” In other words, is “bitch” always sexist?
Putting aside the use of the word in dog-training circles, you might be wondering how this word could possibly not be sexist? It turns out that the Seventh Circuit, in a prior case, actually concluded that the use of the word was not based on sex but rather on personal animosity that “arose out of an earlier failed relationship between the plaintiff and the harasser.”
But in Passananti, the Seventh Circuit reversed the lower court, finding that the mere use of the term in this case, without other gendered words, is sufficient for a finding of sexual harassment. And the court, quite reasonably, pointed out that “when gender-specific language is used in the workplace . . . context is key.” A laudable approach until you look one step further at the specific context that the court looked to for help here: “The jury heard testimony that Sullivan used the word “bitch” regularly in reference to the plaintiff. He did not use the word in jest, but instead used it together with his threats against Passananti’s employment.” Not exactly convincing. We are supposed to understand that the term is gendered because he didn’t use it in jest and was threatening her employment?
Most of us would agree that the supervisor’s use of the word “bitch” in this case was gender-derogatory for one simple reason: he is a man, using a gendered word, against a woman, and there is no other explanation for its use. Can the term have different meanings in other contexts? Absolutely. When women use it amongst themselves, for one, the term can be endearing or playful. But it is rarely benign when spoken by a man and directed at a woman. But nowhere in the court’s lengthy discussion of context does this simple truth appear. Why is the court so hesitant to name this reality – that linguistic meaning is the product of multiple contextual factors, including, importantly, the identity of the speaker?
I’ll save additional discussion and some possible answers for a later post. Suffice it to say, I am thinking a lot about this question right now and have just posted a draft of my article on the topic on SSRN. I’ll discuss the article in a later post but for now here’s the link to The N-Word at Work: Contextualizing Language in the Workplace.