Yesterday I heard about President Obama’s National Urban League speech on NPR, and one particular item struck me. (I’m sure it’s not the most important item, but it’s just the one about which I have something to say.):
We should all make more of an effort to discuss with one another, in a truthful and mature and responsible way, the divides that still exist — the discrimination that’s still out there, the prejudices that still hold us back — a discussion that needs to take place not on cable TV, not just through a bunch of academic symposia or fancy commissions or panels, not through political posturing, but around kitchen tables, and water coolers, and church basements, and in our schools, and with our kids all across the country.
I certainly agree that it would be good for people to discuss racial issues in a truthful, mature, and responsible way. But I’m pretty sure that discussing such issues around “water coolers” is pretty dangerous advice, at least if one really wants a discussion in which people aren’t afraid to air their views.
1. To begin with, any arguments that some might see as racist could lead to complaints and even lawsuits about a supposedly “racially hostile work environment”; and while such lawsuits are hard for plaintiffs to win, no employer wants to have to fight them, and no employee should want to have his speech be the subject of such suits.
As one Sixth Circuit decision put it, “In essence, while [harassment law] does not require an employer to fire all ‘Archie Bunkers’ in its employ, the law does require that an employer take prompt action to prevent such bigots from expressing their opinions in a way that abuses or offends their co-workers. By informing people that the expression of racist or sexist attitudes in public is unacceptable, people may eventually learn that such views are undesirable in private, as well. Thus, Title VII may advance the goal of eliminating prejudices and biases in our society.” When some judges (not all, fortunately, but some) take such a view, smart workers ought to be careful about any speech that some might perceive as “expression of racist … attitudes” at work; and even someone who is trying hard to be “truthful and mature and responsible” in discussing race might certainly say things that some offended listeners view as racist.
(I should note, by the way, that while there are many practical deterrents to an employee’s suing over racial harassment while he is still employed at the company where the incident took place, many such lawsuits happen when the employee has already been dismissed. Then there is little cost to adding a racial harassment claim on top of a racial discrimination in discharge claim, and there is the prospect that even if not enough evidence can be found of racial discrimination in discharge, the racial harassment claim might be successful, or at least plausible enough to pressure the employer into a settlement.)
When the legal standard is as vague as that the speech, together with other statements by other people at other times, is “severe or pervasive” enough to create a “hostile, abusive, or offensive work environment” for the plaintiff and a reasonable person based on race, the cautious employer is likely to want its employees to likewise be very cautious in this field. Alan says around the water cooler that the underrepresentation of blacks in some job category stems from white racism. Betty responds — perhaps thoughtfully, or perhaps out of anger at what she sees as Alan’s exaggerations or overgeneralizations — that the real reasons might be failings in black American culture, or even genetic differences. Is that the sort of thing that might become part of a racial harssment case? Well, it may well be “expression of racist … attitudes in public,” so the Sixth Circuit opinion I quoted above might call for liability. Or maybe a court will conclude that it doesn’t count, because a reasonable person shouldn’t be offended by such political expression (though there is certainly no “political speech” or “attempt at honest conversation about race” exception recognized in harassment law right now). But the point is that Betty, and Betty’s employer, can’t possibly know that such statements are safe; the careful employer is therefore likely to punish such statements, or at least ban them for the future, and the careful employee is likely to avoid them, or any conversations that could lead to them.
And no employer can afford to respond to a claim that an employee said something racist by saying, “Oh, no problem, it’s not severe or pervasive enough to lead to liability,” especially since an employer who doesn’t punish individual such statements can be held liable for the aggregate of several such statements by several people. To give one example, from Phillip M. Perry, Don’t Get Sued for Racial Discrimination, Law Prac. Mgmt., July-Aug. 1996, at 42:
In [cases of people inadvertently using inappropriate terms], because of the seriousness of the offense discipline might begin with a strong reprimand and a disciplinary suspension. If an incident occurs again, it may result in termination. For acts which are deliberate and offensive, immediate termination may be called for. [Carl] Johnson [President of Princeton Employee Relations] gives one example: “In the Midwest, during the 1988 presidential campaign, a supervisor at one company used the office copy machine to run off some fake applications to join the Jesse Jackson campaign staff. The application included racist language. The individual was discharged immediately.”
See also, e.g., Russell Shaw, Cyberspace Conduct: What’s Your Policy?, Investor’s Business Daily, Nov. 18, 1997, at A1 (beginning by an example of “access [to] an X-rated Web site” leading to “threat[ of] a lawsuit for sexual harassment,” and going on to say that “As you draft policies for Internet usage, experts recommend cautioning employees against . . . [c]licking to sites known for explicit sexual content or extreme views likely to be insulting to various racial or religious groups”). I discuss other similar examples of advice to employers — and of actual filed lawsuits and court statements — here, though the incidents are largely from several years or more ago, since I haven’t updated the page much in recent years.
2. Moreover, statements that could be seen as involving race-based generalizations could be later introduced as evidence of racial animus in a discriminatory discharge/demotion/failure to hire/failure to promote case, if the speaker has a role in the hiring process. Recall the Alan-Betty exchange: When Alan is later discharged, and sues for race discrimination, he argues that Betty had some role in the discharge decision, and that Betty’s statement is evidence that she likely discriminated against him based on race.
Again, it’s not clear that such a statement would lead to a victory in court; the jury might not find it probative enough, and in any case it might in some situations be seen as insufficient evidence under the “stray remarks” doctrine. But the risk is sufficient, I think, that many an employer will immediately discipline Betty for her statement, and that at the very least people like Betty would be reluctant to express their true views, either at work or elsewhere.
To be sure, such evidentiary use of speech is not a First Amendment violation, given well-settled doctrine applicable far beyond antidiscrimination law; my First Amendment objections apply to actual liability for speech under harassment law. But this doesn’t change the fact that discussions about race around water coolers are potentially very dangerous.
3. Finally, this isn’t just a matter of liability: Allegedly racist comments can yield bad publicity for the employer, can waste a huge amount of employer time and energy on internal investigation and discussion, and can cause morale problems that interfere with productivity. Even without the risk of litigation, many people have long been cautious about talking about matters that their listeners might feel strongly about a deep and personal level — race, religion, politics, sexuality, and more. Nonetheless, it seems to me that the risk of vast liability has been an important factor in dramatically increasing the cost of expressing one’s candid views about race (especially at work), and in deterring people from expressing those views.
4. What strikes me as most interesting about this phenomenon — other than the practical unsoundness of President Obama’s suggestion — is that the very fight against discrimination and prejudice that the President is trying to promote in his statement has made it much harder to have candid discussions about race. We see the same happening in some measure as to candid discussions about sexual orientation. (The early phases of the gay rights movement also made it socially easier to have such candid discussions, but as sexual orientation discrimination law is beginning to follow the path of racial discrimination law, such discussions are becoming more professionally and legally perilous.) That might be an inevitable and acceptable consequence of that fight. But I don’t think that we can ignore it, and suggest that more discussion — at least around the water cooler — is going to help solve the problem.