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THINGS EMPLOYERS WISH THEY HAD NEVER SAID

Racial Discrimination
National Origin Discrimination
Age Discrimination
Disability Discrimination
Religious Discrimination
Gender Discrimination
Genetic Information Discrimination

"Sticks and stones may break my bones, but words will never hurt me." Whoever came up with that old saying probably never talked with employment law attorneys and the employees who file lawsuits against their employers based in part on hurtful language at the workplace. The days when people can say whatever they want to without fear of recrimination are gone forever, if they ever really existed at all. Here is another old saying that one never seems to hear in court: "To err is human; to forgive is divine." Employers sometimes err, but should not count on employees being divinely forgiving. Court cases and newspaper articles dealing with employment discrimination are often replete with words that employers end up wishing they had never spoken. This article outlines some of the many things that, once uttered, cannot be unsaid and usually end up being thrown back in an employer's face in court. The various epithets and sayings are organized into the categories of discrimination they implicate, and all are examples of epithets, offhand remarks, or conversational snippets that have appeared in real court cases. One way to think of them is as "never-says", for they are things that an employer that wishes to stay out of court should never say either to or in the presence of an employee.

 

Racial Discrimination Never-Says    Top of Page

  1. Racially-oriented jokes (laughter is cheap; lawsuits are expensive)
  2. Singling out racial minorities for obscene gestures or words
  3. Criticizing only racial minorities
  4. Telling minority employees that the only reason they're not fired is because the law won't let them be fired
  5. Well-known racial and ethnic slurs
  6. Antiquated terms relating to race or color
  7. Terms based on assumptions about a person's ethnic background
  8. Reminding people of their skin color or assumed ancestry
  9. "You people"; "your people"
  10. "wrong side of the tracks"
  11. Try not to ask: "Do you prefer being called 'Black', 'African-American', or what?"; "... 'Brown', 'Hispanic', 'Latino', 'Mexican-American'...?" - this shows far too much preoccupation with ethnicity or skin color; the employer should stick to worrying about whether someone can do the job; just call employees "employees" and refer to them by name or job position

EEOC guidance on racial discrimination: https://www.eeoc.gov/racecolor-discrimination

 

National Origin Never-Says    Top of Page

  1. National origin-related jokes
  2. Ethnic slurs
  3. Referring to people in terms of their assumed nationalities
  4. Making fun of accents
  5. Constantly bringing up shortcomings of people's supposed countries of ancestry
  6. EEOC is focusing on discrimination against people who are assumed to be of Middle Eastern descent

EEOC guidance on national origin discrimination: https://www.eeoc.gov/national-origin-discrimination

 

Age Discrimination Never-Says    Top of Page

  1. Jokes that depend upon making fun of older people
  2. "You can't teach an old dog new tricks."
  3. "over the hill", "past his prime", "part of the old guard", "she's seen better days", "golden-ager", and cruder slurs typically associated with age-related put-downs
  4. Referring to older employees as "Prunella" or "Methusaleh" or other names associated with old age
  5. "Over-qualified"
  6. "We need new blood around here."
  7. "We need fresh faces around here."
  8. Frequently asking when someone is finally going to retire
  9. Subtler - even this can be misconstrued: asking someone if they're going to be comfortable working under someone younger than they are (too much focus on age - find another way to get an idea on that)
  10. Winner of the prize for "Why Agency-Speak Needs Good Filtering": In describing the justification for outsourcing certain IT functions to a well-known third-party provider of IT services, the U.S. Department of Agriculture stated that "its goal was to incorporate 'younger highly qualified professionals [who] will have a modern professionally managed information infrastructure at their disposal.'" To illustrate its thinking further, the department applied "the metaphor of highly engineered cars that need very little service and minimal service centers to support, versus older cars that are not as precise and need full service gas stations." While it is unclear whether the USDA got the hoped-for mileage out of the younger, highly engineered cars supplied by the outside contractor, the outcome in this age discrimination case was not good for the employer. Riley v. Vilsack, 665 F.Supp.2d 994, 998 (W.D. Wis. 2009).
  11. Another good illustration of how not to explain things: "... On August 13, 2009, [school official] presented a PowerPoint presentation on '21st Century Learning' to his staff. (Pl.'s Br. at Ex. 25.) In the presentation, [school official] used slides depicting people of various ages using a variety of technologies. (Id.) He also asked participants to participate in a 'CITE Survey,' which began by categorizing people into age ranges such as 'younger than 30' or '52 or older.' (Id.) One slide explained the distinction between 'digital natives,' which was defined as those who are born at a time when a particular technology exists, and 'digital immigrants,' who are born before a particular technology is invented. (Id.) That slide further explained that '[d]igital immigrants are said to have a "thick accent" when operating in the digital world in distinctly pre-digital ways, when, for instance, one might "dial" someone on the telephone to ask if his e-mail was received.' (Id.) A subsequent slide appears to demonstrate that brain function while using technology is higher in those who are 'digital natives.' (Id.)" Marlow v. Chesterfield County School Bd., 749 F.Supp.2d 417, 426 (E.D. Virginia, Richmond Division, 2010).

EEOC guidance on age discrimination: https://www.eeoc.gov/age-discrimination
AARP resources: https://www.aarp.org/work/working-at-50-plus/age-discrimination/

 

Disability Discrimination Never-Says    Top of Page

  1. Disability-related jokes
  2. Making fun of various disabilities
  3. Disability-related slurs
  4. Frequently calling attention to someone's limitations
  5. "Now he'll probably go and file a workers' comp claim!"

EEOC guidance on disability discrimination: https://www.eeoc.gov/disability-discrimination
DOL Guide to hiring people with disabilities: https://pueblo.gpo.gov/CAARNG/ODEP/PDF/ODEP003.pdf
EEOC guide for small businesses: https://www.eeoc.gov/laws/guidance/small-employers-and-reasonable-accommodation
EARN: https://askearn.org/topics/recruitment-hiring/
Job Accommodation Network: https://askjan.org/
JAN training videos and modules: https://askjan.org/events/Multimedia-Training-Microsite.cfm

 

Religious Discrimination Never-Says    Top of Page

  1. Religion-based jokes
  2. "You're not going to Heaven."
  3. "There's only one way to get into Heaven."
  4. "Atheists are going to hell."
  5. "That's a Jew/Muslim/Buddhist/atheist for you!"

EEOC guidance on religion-based discrimination: https://www.eeoc.gov/religious-discrimination

 

Gender Discrimination Never-Says    Top of Page

  1. Jokes that depend upon making fun of one gender or another
  2. Always calling attention to male/female worker ratios, or differences between genders (isn't there something related to the actual work that people can talk about?)
  3. Unsolicited remarks about a person's appearance, even if they seem like compliments
  4. Words relating to female stereotypes: the "b" word, "honey", "darling", "cute li'l thang"
  5. Derogatory language directed at one gender or another, even if a specific person is not targeted
  6. Try to avoid the term "ladies" - many people nowadays consider it either fawningly patronizing or even disrespectful, depending upon the context, and especially when spoken by a male employee.
  7. Don't pronounce job titles with "-person" in them sarcastically or comically on a regular basis; better solution: find and use generic, gender-neutral job titles, such as director, manager, board chair, driver, operator, designer, server, waitstaff, and so on.
  8. Instead of lame comments about women not being able to "man" a booth at a conference or similar event, a gender-neutral term might be better: "So-and-so will staff the booth for us that morning."
  9. If there are people in the office who are unusually attractive, do not call attention to their appearance or to what their appearance can supposedly do for the company.
  10. Avoid jokes or speculation about marital status, marital relations, body parts, and mechanical or drug-related body part enhancers.
  11. "She's pregnant? Well, great - now she'll be off for who knows how long!"
  12. To someone who has just experienced possible sexual harassment: "Don't worry about him - that's just the way he is!"
  13. Unkind comments about LGBT+ individuals

EEOC guidance on gender-based discrimination: https://www.eeoc.gov/sex-based-discrimination
EEOC guidance on sexual harassment: https://www.eeoc.gov/sexual-harassment
EEOC guidance on sexual orientation- and gender identity-based discrimination: https://www.eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination

 

Genetic Information Discrimination Never-Says    Top of Page

Issues arising under the Genetic Information Non-discrimination Act of 2009 will be very difficult to separate from issues arising under disability discrimination and medical information privacy laws such as HIPAA. Gossip and its malevolent effects will also contribute to claims and lawsuits under GINA. There have been no published court decisions yet focused on this area of the law, but the following are examples of statements that will likely show up eventually in cases arising under GINA:

  1. "I heard that diabetes runs in her family. We'd better really watch her attendance."
  2. "His doctor is [so-and-so]. Since her specialty is [xyz genetic disorder], I'll bet that's what he has."
  3. "She told me that her mother and grandmother both had heart disease. Isn't there some way we can exclude her heart condition from our insurance plan?"

EEOC guidance on discrimination based on genetic information: https://www.eeoc.gov/genetic-information-discrimination

 

In general, try to avoid remarks and comments that focus on things about people that they cannot change about themselves, that tend to put up walls between groups, and that make people feel excluded, i.e., "you're not one of us." When referring to others, use their names, their job positions, or their professions. A successful company that values diversity will, at all levels within the team, promote the kind of interactions that help people feel included and that their contribution really means something.

The foregoing are just some examples of what the EEOC, judges, and juries sometimes consider in order to find that a hostile work environment exists in a company that has been accused of illegal discrimination, or that enough evidence exists to allow a lawsuit to proceed. Sometimes good manners and common sense help avoid remarks like that, while training or fear of lawsuits might wield more influence at times. Whatever it takes, though, employers should be very careful to keep from ever uttering such things, because even though others might seem to smile or nod in agreement, or at least remain quiet, such words hang on the air like the scent of a skunk, and if a discrimination claim or lawsuit is ever filed, it is almost inevitable that the one who said them, as well as the company that employs him or her, will have to eat those words.

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