Words Matter: Mere Utterance Is Not Offensive

John K. Murphy

This article is meant to start a conversation on how we use our words to heal or harm.

Many other writers, including myself, have presented information through various articles related to probably the most offensive word in our language that gets everyone fired up about its use. The word in question is the “N” word that has been found in classical writings, used in fire stations and on the street, in music and hundreds of other settings.

Using the “N” word on your social media site, in many cases, generally leads to career suicide. It occurs when you, in a deliberate or bone-head moment, decide to express your many opinions on your social media site and someone actually reads it.

One of many examples is where a firefighter shared an overtly racist Facebook post. The firefighter had posted a picture of cotton with the words “Free BLM Shirts” at the top, and at the bottom “Some Assembly Required.” He captioned the photo “You’re welcome,” and concluded with a blushing-smiling emoji. The Mayor of the town spoke out against the post, calling it racist and in appropriate, and announced that the firefighter had been fired. The mayor goes on to state, “It’s a racist comment and a racist post. It’s a racist post essentially jabbing Black Lives Matter and it implies that they should pick cotton and it’s just not appropriate.”

This is one of hundreds of cases across our nation involving firefighters.

Firefighter Social Media Use During the Black Lives Matter Movement

Legal Fire Prevention: Social Media Policy

Social Media: The Rules Are Already on the Books

What of other occupations? Say for example, hospital workers [i] as it goes across the workplace spectrum affecting numerous employees.

A Texas man who sued the hospital where he was employed indicated supervisors ignored complaints about a carving of the N-word on the wall of an elevator he and other hospital workers often used. The employee, a black man working as an operating room aide for seven years, brought the suit after he was fired from Parkland Memorial Hospital in Dallas in 2016, claiming the hospital created a racially hostile work environment in violation of Title VII of the Civil Rights Act.

White nurses called Black employees “boy,” and two swastikas painted on the wall of a storage room were ignored despite employees reporting them to hospital management. But at the crux of the employee’s dispute was the carving of the N-word into the elevator wall. The former hospital aide said while he complained multiple times to supervisors about the incendiary graffiti and hate symbols, they remained untouched for months, and their presence made the hospital a hostile work environment. A federal district court in Texas sided with the Dallas hospital, finding the employee’s work environment was not sufficiently abusive to constitute a hostile work environment.

The court, however, acknowledged the N-word is “racially offensive and universally condemned,” and said the swastikas “could be interpreted as offensive to the employee because of his race. A three-judge panel on the 5th Circuit agreed, noting in previous decisions it found the oral utterance of the N-word and other racially derogatory terms, even in the presence of the plaintiff, may be insufficient to establish a hostile work environment. [ii]

The Supreme Court recently declined to hear this case leaving the 5th Circuit ruling intact.

So the question for our firefighting world, does a mere utterance of offensive word(s) in the workplace even one time create a hostile work environment? Does a single use, or “mere utterance,” of a racial epithet like the N-word gives rise to a hostile work environment under Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination on the basis of race?

The 5th Circuit court opined, “the conduct that the employee complains of was not physically threatening, was not directed at him (except for the nurse’s comment), and did not unreasonably interfere with his work performance”. “In fact, the employee admitted that the graffiti interfered with his work performance by only one percent.”

In asking the Supreme Court to take up his appeal of the 5th Circuit’s decision, the employee’s attorneys claimed there was disagreement in the courts over whether use of a racial epithet like the N-word in the workplace can create a hostile work environment.

In some of the federal judicial circuits, a jury may find use of the N-word at work is severe enough to violate Title VII, but in others, a single use of a racial slur is a non-actionable “mere utterance” that will not reach a judge or jury.

The employee’s attorneys write, “Regrettably, the word is frequently used in the workplace to demean Black employees, so long as the disagreement between the circuits persists, Black employees in a significant swath of the country will, at a minimum, be forced to endure its prolonged and repeated use before they are able to reach the trier of fact on a hostile-work-environment claim.”

So, we can truthfully say insensitive language given with an intent to harm, or a slip of the tongue or in the heat of the moment or whatever, helps or harms those on the receiving end of our inarticulate utterances has a long lasting effect on our employees. Most departments have Policies that address these issues in the form of Anti-Bullying, Anti-Harassment, Anti-Discrimination, Codes of Conduct and Ethical standards. There are not enough polices in the world that address firefighter behavior while on the job or even off the job.

Without being the “word police”, I urge each and every one of you to take a look at the world around you – things are changing. There are more examples of “offensive” behaviors recorded, heard, witnessed and litigated than ever before.

The fire service must take the higher moral and ethical ground and should be one of those shining examples of tolerance and acceptance in a service consisting of predominately white males. There are a group of people in our ranks that do not look like us, have differing religious beliefs, sexual orientation, and other differing traits.

As Mahatma Gandi once said, “Carefully watch your thoughts for they become your words; manage and watch your words for they will become your actions; consider and judge your actions as they for they have become your habits; acknowledge and watch your habits for they shall be come your values; and understand and embrace your values for they become your destiny.

REFERENCES

[i] Supreme Court declines case over racial slur in workplace (msn.com) 

[ii] Robert Collier v. Dallas County Hospital Dist. No. 19-10761 (5th Cir.2020)

JOHN K. MURPHY, J.D. M.S, PA-C, EFO, began his fire service as a firefighter/paramedic and retired as a deputy chief after 32 years of service. He is an attorney licensed in Washington whose focus is on firefighter health and safety, firefighter risk management, employment practices liability, policy, internal investigations, and expert witness litigation support.


This commentary reflects the views of the author and not necessarily the views of Fire Engineering.

It should not be construed as legal advice or counsel.

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