Legislation and Judicial Rulings of the Word "Nigger"

On February 28, 2007, the New York City Council symbolically banned, with a formal resolution, the use of the wordnigger; however, there is no penalty for using it. The New York City resolution also requests excluding from Grammy Award consideration every song whose lyrics contain the word nigger, however Ron Roecker, vice president of communication for the Recording Academy doubts that it will have any effect on actual nominations.^[22][23]

In the US, the recurrent readingcurricula controversy about the vocabulary of the novel Adventures of Huckleberry Finn (1885) by Mark Twainabout the slave South, risks censorship because of 215 (counted) occurrences of the word nigger, most refer to Jim, Huckleberry's escaped-slave raft-mate.^[33][34] Twain's advocates note that the novel is composed in then-contemporary vernacular usage, not racist stereotype, because Jim, the black man, is a sympathetic character in the nineteenth-century Adventures of Huckleberry Finn. The book was re-published in 2010 with edits removing "the 'N' word" as reported in Timeonline.^[35] The Adventures of Huckleberry Finn has been the subject of controversy in Arizona, where a parent group's attempt to have it removed from a required reading list was struck down by the court.

In 1960, a stand at the stadium inToowoomba, Australia, was named the "E. S. 'Nigger' Brown Stand" honoring 1920s rugby league player Edwin Brown, so nicknamed since early life because of his pale white skin; so known all his life, his tombstone is engraved Nigger. Stephen Hagan, alecturer at the Kumbari/Ngurpai Lag Higher Education Center of theUniversity of Southern Queensland, sued the Toowoomba council over the use of nigger in the stand's name; the district and state courts dismissed his lawsuit. He appealed to the High Court of Australia, who ruled the naming matter beyond federal jurisdiction. At first some local Aborigines did not share Mr Hagan's opposition tonigger.^[72] Hagan appealed to the United Nations, winning a committee recommendation to the Australian federal government, that it force the Queensland state government to remove the word nigger from the "E. S. 'Nigger' Brown Stand" name. The Australian federal government followed the High Court's jurisdiction ruling. In September 2008, the stand was demolished. The Queensland Sports Minister, Judy Spence, said that usingnigger would be unacceptable, for the stand or on any commemorative plaque. 

Key prosecution witness Detective Mark Fuhrman, of the Los Angeles Police Department (LAPD) – who denied using racist language on duty – impeached himself with his prolific use of nigger in tape recordings about his police work. The recordings, by screenplay writer Laura McKinney, were from a 1985 research session wherein the detective assisted her with a screenplay about LAPD policewomen. Fuhrman excused his use of the word saying he usednigger in the context of his "bad cop" persona. Linguistically, the popular press reporting and discussing Fuhrman's testimony substituted the N-word in place of nigger.
 In January 1999, David Howard, a white Washington, D.C. city employee, was compelled to resign after using niggardly—in a financial context—while speaking with black colleagues, who took umbrage. After reviewing the misunderstanding, MayorAnthony Williams offered to reinstate Howard to his former position. Howard refused reinstatement but took a job elsewhere in the mayor's government.^[88]
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Federal court takes on the word "nigger" in a reverse race discrimination case

The word "nigger" has been discussed a lot in the media this week, with theannounced sanitization ofHuckleberry Finn. (AreRoots and To Kill a Mockingbird next? But I digress.) InBurlington v. News Corp. (12/28/10), a Philadelphia federal judge has ordered that a jury must decide whether it is acceptable for a black employee, but not a white employee, to use that word in the workplace. The opinion also contains a lengthy narrative (excerpted below) discussing the larger implications of the differential use of the word between white America and black America.

This case involves the firing of a white television news anchor over his non-pejorative, context-appropriate, use of the word "nigger" during a newsroom meeting. Thomas Burlington, who is white, claims race discrimination because the station did not discipline, let alone fire, three black employees who used the same word in similar meetings in similar contexts. The court agreed that Burlington's different treatment justifies a jury trial on the issue:

Plaintiff's use of the word elicited a severely negative reaction, brought the meeting to a close before he could explain himself, and was followed by his immediate suspension, while Jervay's use of the word elicited only Defendants' defense of his actions. Plaintiff is white. Jervay is African American. Management's inability to explainwhy Jervay was allowed to use the word while Plaintiff was not permits the inference that their races influenced the decision, and that a similarly situated African American employee was treated more favorably than Plaintiff under similar circumstances.

The court also took on society's conventional use of the controversial word:

Justice Holmes observed that "[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." This is certainly so with this particular word. Merriam-Webster notes in the usage section of its definition of the word that "[i]ts use by and among blacks is not always intended or taken as offensive, but … it is otherwise a word expressive of racial hatred and bigotry." … Professor Kennedy, an African American, made the observation that

many people, white and black alike, disapprove of a white person saying "nigger" under virtually any circumstance. "When we call each other 'nigger' it means no harm," [rapper] Ice Cube remarks. "But if a white person uses it, it's something different, it's a racist word." Professor Michael Eric Dyson likewise asserts that whites must know and stay in their racial place when it comes to saying "nigger." He writes that "most white folk attracted to black culture know better than to cross a line drawn in the sand of racial history. Niggerhas never been cool when spit from white lips." …

When viewed in its historical context, one can see how people in general, and African Americans in particular, might react differently when a white person uses the word than if an African American uses it.

Nevertheless, we are unable to conclude that this is a justifiable reason for permitting the Station to draw race-based distinctions between employees. It is no answer to say that we are interpreting Title VII in accord with prevailing social norms. Title VII was enacted to counter social norms that supported widespread discrimination against African Americans…. To conclude that the Station may act in accordance with the social norm that it is permissible for African Americans to use the word but not whites would require a determination that this is a "good" race-based social norm that justifies a departure from the text of Title VII.

"Nigger" is one of the English language's most volatile words. Few others spark as much debate or as much rancor. We should all be able to agree that it has no place in the workplace. Yet, as this case illustrates, Title VII does not allow for double standards. If you intend to punish its use by white employees, you cannot condone its use by black employees.

Two postscripts. First, if anyone is offended by my use of the word "nigger," consider that theBurlington opinion uses it 21 times, while only using the now-common replacement "n-word" only three. Employment law is often dirty and offensive; I'm merely reporting fact.

Second, so we can analyze how far our society's race relations have traveled (at least over the last 35 years), below is the classic Word Association skit from Saturday Nigh Live, circa 1975, featuring Chevy Chase and Richard Pryor.

 

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Posted 6th January 2011 by Jon Hyman

Labels: race discrimination