A recent Supreme Court decision serves as an oft-needed reminder that even everyday words or slang may be sufficient evidence of discrimination. Ash v. Tyson Foods, Inc., 126 S. Ct. 1195 (Feb. 21, 2006). In Ash, two African-American superintendents applied for shift manager positions at a Tyson’s poultry plant. Both were passed over in favor of white employees. They filed a race discrimination lawsuit in federal court under Title VII and 42 U.S.C. § 1981. At trial, plaintiffs presented evidence that their manager called each "boy" on several occasions. The manager did not use a racial modifier or use the word in any discussion regarding the promotion. Interestingly, there was evidence that the same manager was quite rude and curt in his dealings with both African-American and Caucasian employees.
The jury found in favor of both plaintiffs. On appeal, the Eleventh Circuit opined that use of the word "boy" alone says little, if anything, about the prejudicial intent of the speaker.
In a per curiam opinion, the Supreme Court reversed, holding that modifiers or qualifications are not required to render the term probative of bias. "Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage." Ash, 126 S. Ct. at 1197. In other words, the word "boy" used by a white man in reference to a black man may be a racial epithet.
This unanimous decision emphasizes to employers that a seemingly innocuous word may be discriminatory or harassing, depending on the context. If the listener takes it in a certain derogatory way, there is probably a juror who will also understand it that way. It is easy to imagine similar disputes over intent and context arising from use of words such as "girl," "girlfriend," "son," "sister," "brother," "lady," or "people." As new slang becomes part of everyday parlance – often due to usage on television programs or in popular music – more and more words become subject to possible interpretation of discriminatory intent. Courts will be even more hesitant now to establish bright line rules regarding what intent may be inferred from the use of seemingly innocuous words.
In addition, the Ash decision could be used to restrict the "stray remarks" doctrine. Under this doctrine, stray remarks that are unconnected to an adverse employment decision are not generally evidence of discrimination. Examples of this doctrine include gender discrimination cases, where stray use of the word "bitch" has not been sufficient evidence of discriminatory intent, and age discrimination cases, where stray use of the term "old boys" has been held insufficient to prove pretext.
While the Ash decision is not surprising, it is a necessary reminder that multiple interpretations associated with a simple word can be enough for a plaintiff to establish a discrimination or harassment claim. When investigating complaints, employers should be reminded to consider the context, tone, and demeanor of the speaker before making any decision as to how the complaint should be resolved.
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