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Why Incognito Must Be Disciplined

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Employers face many “code blue” incidents in the workplace that warrant immediate employee termination. These include performing illegal activity during work hours, unlawfully disclosing the company’s confidential information, and being the source for a significant loss in revenue just to name a few. But as Don Imus, Paula Deen, Hugh Douglas, and other celebrities have experienced, another code blue for employers is an employee’s use of racial slurs. No matter the scenario or the amount of people coming to the employee’s defense, employers must have a zero tolerance policy against the use of racial slurs. This brings us to the latest incident garnering public attention, Richie Incognito.

Richie Incognito is suspended with pay from the Miami Dolphins’ roster while the National Football League investigates allegations that he contributed to a racially hostile work environment. According to Jonathan Martin, a former football player for the Dolphins, he endured harassment in the form of threats and racial epithets from some of his teammates. A racially offensive voicemail message to Martin from Incognito was released supporting Martin’s claims. The message called Martin a “half n***” and threatened to assault a member of Martin’s family.

Federal and state anti-discrimination laws prohibit an employer from creating a hostile work environment for an employee based on his or her race, color, religion, national origin, or sex. While many may dispute whether the incidents occurred under the employer’s supervision or whether the comments were meant to offend, the comments would nonetheless be used as evidence to support racial animus or offensive conduct by a teammate. A jury will use this evidence in determining if such animus or offensive conduct occurred in his workplace.

Several of Incognito’s teammates publicly defended him stating that his comments were in jest and that he was not racist against black people. While such support does not hurt, Martin can submit medical experts supporting his emotional harm and it does not alleviate the reality that courts view such comments as offensive. Furthermore, even if the comment was directed at someone who perceived it in jest, it does not mean that another person hearing the comment perceived it as offensive. This is another reason why employers institute a zero tolerance for use of racial slurs because an objective standard prohibiting all use is better than a subjective or ambiguous one permitting use under certain circumstances.

A New York federal court recently awarded $250,000 to a black woman alleging discrimination by her boss, a black male. She claims he referred to her as the N word which left her feeling offended and degraded. In response to her claim, her boss stated that his use of the word was not racist but rather an act of love and endearment. To emphasize the point of zero tolerance for the use of that word, the jury awarded her an additional $5,000 in punitive damages as a lesson to her employer.

In determining whether an employee endured a hostile work environment, intent to harm is sometimes relevant. But Incognito and other workers must learn that racial epithets in the workplace do require the requisite intent.

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