Thursday, May 18, 2006

Inversion and Reversion

Eugene Volokh points to a rather odd harassment claim currently working its way through the New Jersey Courts. At first glance, it doesn't seem out of sort. A woman quits her job and sues, claiming that coworker A with the tacit consent of Supervisor B made racially disparaging remarks, expressed personal hostility towards her, and generally created a hostile environment for someone of her race. The catch? The plaintiff, Candy Bredt, is White, and "Coworker A" is Black. Ms. Bredt made three claims:
1) "[Regina] Johnson[, a coworker,] told plaintiff that she had a 'black butt' and subsequently smacked her on the buttocks on at least three occasions. Johnson threatened to 'kick her white ass.'"

2) Johnson also made some much more political statements. "Johnson routinely spoke about how white state troopers always harassed her and her husband. In her deposition plaintiff testified that because the office was small and crowded, she was forced to listen to Johnson's contentious discussions with others, including her supervisor defendant Will[ia]ms, about how white people got all of the jobs and that there were not enough black doctors and nurses at CINJ. Plaintiff testified that she recalled on one occasion that defendant Williams distributed a flier that depicted photographs of newly graduated doctors. Johnson and Williams looked at the photos to see 'how many black doctors graduated because it's all white people and Indians.' They then said, 'Look at that. Disgusting.'"

3) This was listed on par with the first category, under the rubric of "[P]laintiff contends Johnson's speech and conduct were clearly indicative of her racial animosity towards white people and created a work environment of 'black vs. white' and 'us vs. them.'"

"In addition to the racially charged comments, plaintiff testified that Johnson told her that she hated her, called plaintiff stupid, also called her 'asshole' once a week, and on one occasion took her finger and pushed it against plaintiff's breast."

The New Jersey Court reversed a summary judgment in favor of the employer, holding that the aforementioned acts could be construed by the jury as being legally liable.

I disagree with those who would categorically deny Whites the right to sue under anti-discrimination laws. As Frank H. Wu has written, "an approach that categorically denies the possibility that in some instances a white male plaintiff may have a valid claim is rightly repudiated as unfair," and "It is unclear that anything would be gained, or that the result would be especially principled, if white ethnic minority individuals were denied the ability to sue for straightforward discrimination by an institutional actor (i.e., the case was not a collateral challenge to affirmative action.)." The question is, do the acts depicted in numbers one and three meet that criteria (two is a whole separate animal, I'll get to that later)?

I think the answer is a close-call yes, at least with regards to having it heard before a jury (at trial, both sides will get a chance to share their perspectives, which could change the way the case looks dramatically. But an evaluation of a summary judgment ruling is made by interpreting contested facts in the manner most favorable to the responding party, which is how I'm analyzing here). It doesn't happen very often, but if a coworker or group of employees creates a pervasively hostile environment for a White employee as a result of her race, it seems unfair to the extreme to place that beyond legal remedies.

The obvious wrinkle is the labeling of a White person by a Black person as having a "Black butt". Obviously, this flips both the normal speaker (White to Black) and recipient (Black to White). How should the court interpret that? On the one hand, it's important not to revert back into old patterns of thinking, in which calling a White person Black (or something associated with Blackness) was a legal wrong in of itself. On the other hand, it seems though the context surrounding this remark was designed to disparage Ms. Bredt, due to hostility toward her race. That should be legally actionable.

But the second part of the complaint is where things get ridiculous. Professor Volokh makes a strong argument that such speech (which, effectively, is criticizing racial inequalities in America) is constitutionally protected and thus cannot be considered in a harassment case. But this speech is not just protected, it's essential. Bredt is essentially complaining here because she did want to here the uncomfortable truths of a Black colleagues life. If a Black person is being pervasively harassed by the police, then the person we should be protesting against is the perpetrator, not the victim. Similarly, the pervasive underrepresentation of Black men and women in the ranks of new doctors is appalling. Mentioning that fact should be seen as a valuable social service. Ms. Bredt is an utterly unsympathetic plaintiff to me, because she seems to believe that being made aware of continued racial hierarchy is akin to racial harassment. If there ever was a stereotype of how Whites want to bury race dialogue and silence protests of racism, this is it.

Ms. Bredt is a bad plaintiff, and the second part of the complaint should be thrown out. But in principle, Whites with legitimate claims of race harassment should be able to count on the full support from the anti-racist community. Aside from the fact that it's the right thing to do, there are at least two reasons why this is tactically wise:

1) Supporting remedy in the few rare cases where Whites are being discriminated against shows that ending racism is not a "White versus Black" issue, but rather an issue of justice for all races. Having these cases is a powerful rejoinder to those who'd argue that anti-racist discourse is all about hating whitey.

2) If courts are more prone to be sympathetic to the claims of White plaintiffs, then they will likely construct broader rules and less-stringent standards to accommodate their claims. These precedents can then be countermanded by other aggrieved parties (most of whom will be Black), and used for their struggle as well.

In all, one of the most valuable things the anti-racism movement can do is recast its image in the public eye away from a "war against Whites" and towards a "struggle for justice." While for the vast majority of anti-racism activists this already is the primary motivator, they should look carefully for opportunities to present this face forward to the public.

UPDATE: Of course, with the 4th Circuit making awful decisions like this, it's important to qualify that anti-discrimination law is barely working for Blacks either.

No comments: