How a “Poor Choice” of Words Can Help Businesses Address Discrimination

By Eric B. Meyer

Earlier this year, Kelly Osbourne walked out on E!’s Fashion Police shortly after her co-host, Giuliana Rancic, criticized a young African-American Disney star.

Specifically, Ms. Rancic called out the actress for donning dreadlocks at the 2015 Oscars, saying that she must have smelled of “patchouli” and “weed.” Many found Ms. Rancic’s comments racist. Ms. Osbourne too must have been affected, because she told People Magazine that she left Fashion Police because she was not “going to sit there and perpetuate evilness.”

Fast forward several months.

Racist, not racist, or micro aggressions?

Ms. Osbourne is now a co-host on ABC’s The View. On Tuesday, she criticized Donald Trump for his recent comments about Mexico and Latinos, which many before her had labeled as racist.

However, Ms. Osbourne’s rebuke also drew harsh criticism, “If you kick every Latino out of this country, then who is going to be cleaning your toilet, Donald Trump?” She later apologized on Facebook.

Amidst the media fervor surrounding Ms. Osbourne’s comments, I came across this article from The Huffington Post’s Lauren Duca titled, You Can Say Something Racist Without Being ‘A Racist.’ Ms. Duca describes Ms. Osbourne’s remarks as “a peak example of the kind of micro aggression that is derogatory and disrespectful, regardless of intentions.”

My good friend, employment lawyer Jonathan Segal, has looked at how these “micro-aggressions” impact the workplace. The microaggression examples he provides in this post (e.g., “You have a lot of energy for an old guy,” or “You don’t sound black”) are not as overt as Ms. Osbourne’s poor choice of words. But, they have no place in the workplace.

Intent doesn’t matter

I don’t suppose that Mr. Trump cared too much about how is comments were received. I’m not saying that he intended to offend anyone. But, I can’t imagine that his comments have cost him any sleep.

As for Ms. Rancic and Ms. Osbourne, neither appears to have intended to offend anyone. And, both seem genuinely apologetic.

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But, so what?

To borrow from Ms. Duca, while a manager may say something racist without being “a racist,” in the workplace, intent doesn’t matter. It’s all in how words are received and objectively construed.

Based on the public outcry, I assume that most Hispanic employees would be offended if Ms. Osbourne’s words came out of a white, female supervisor’s mouth. Is that enough to create a viable discrimination claim? Not from a single comment.

But these “micro aggressions” usually are not one-off’s. Rather, they tend to repeat themselves; to point where, maybe, they do become pervasive enough to create a hostile work environment. Alternatively, pair them with a materially adverse employment action (failure to promote, bad schedule, less desirable assignments), and you have a possible disparate treatment claim.

I’ll close with Jonathan’s succinct recommendation: “Address this in training so that these types of micro-indignities diminish, if not disappear.”

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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