Friday, August 3, 2012
Leora F. Eisenstadt (the Abraham L. Freed man Teaching Fellow at Temple University Beasley School of Law) writes to tell us that she has posted her forthcoming article in the Berkeley Journal of Employment and Labor Law on SSRN entitled: "The N-Word at Work: Contextualizing Language in the Workplace."
Here is the abstract:
The N-Word at Work examines the misinterpretation of language in employment discrimination cases. 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. This article argues for a context-driven theory of linguistic meaning that is compatible with the purposes of Title VII and other anti-discrimination statutes but that would re-inject a sense of reality into the consideration of discriminatory language.
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. Nonetheless, the problem persists among appellate and district courts alike. In late 2010, for example, a federal district court in Philadelphia addressed the issue head-on in a case involving a white employee who was terminated for using “the N-word” and claimed in his reverse-race discrimination case that had he been African American and used the word, he would not have been disciplined. Like its predecessors, the court approached the problem in a formalistic way that resulted in a context-blind approach to language with unsatisfactory results.
This 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 for (1) robust guidance from the Supreme Court on the purposes of anti-discrimination law and the non-literal applications of that law that make flexible, context-driven considerations of discriminatory language both possible and preferable and (2) extra-legal expert testimony akin to social framework evidence that could translate the cultural realities of language for courts.
Leora also linked to it in a blog post on Concurring Opinions. Looks like a very interesting article. I look forward to reading it, especially its discussion on social frameowork evidence which I have written about preivously along with Melissa Hart (Colorado) in the Wal-Mart v. Dukes context.