By Meghan Droste, October 14, 2020
Those who cannot remember the past are condemned to repeat it.” I am sure you are familiar with George Santayana’s famous saying, or some version of it. While it might not seem like we are in the business of teaching history — rather than law — here at FELTG, in a lot of ways we are. After all, what is any discussion of what the law is without a review of past decision from the Commission or the courts? But that’s not the only way in which history plays an important role in what we do here. As we’ll see from a recent EEOC decision, it is important to understand the history of certain words and phrases because they can provide clear evidence of animus.
In Marleen G. v. Department of Justice, the complainant alleged that her first-line supervisor subjected her to discrimination and harassment based on her race and sex. See EEOC App. No. 2019003172 (Aug. 18, 2020). During the investigation, the complainant and several witnesses testified that her supervisor repeatedly screamed at her, chased her down the hall, and on at least two occasions, touched the complainant in a way she found intimidating. The record also showed that the Agency counseled the supervisor and offered her training, but this did nothing to stop the harassment.
As evidence that the harassment was based on her race and sex, the complainant provided several examples of the supervisor’s statements. These included the supervisor telling the complainant that she lacked common sense and her assumption that this was due to the complainant’s “culture.” Other examples included the supervisor calling the complainant and another Black female employee “uppity,” and her comments about the “ridiculousness of weaves worn by African-American women.” The complainant also shared that in discussing rumors that the complainant was having an affair with a married subordinate, the supervisor stated, “I know it seems unlikely because what would an older white man have with a middle-aged black woman.”
In its Final Agency Decision, the Agency held that there was no evidence that the supervisor’s harassment was directly tied to the complainant’s protected bases and there was nothing to create an inference of animus. The Commission reversed, finding sufficient evidence in the supervisor’s comments to support a finding of discrimination and harassment. The Commission noted that historically the word “uppity” has had a racial connotation. The Commission also reflected on the “significant history” of criticism of Black women’s hair, and the “significant trope with an extensive history” of depicting Black people as less intelligent. The supervisor’s use of these historically offensive ideas and language was more than enough for the Commission to conclude that the supervisor’s actions were based on the complainant’s race and sex.
Language changes and evolves over time, which can be a wonderful and helpful thing. But we are doomed to continue — and agencies will be liable for — a pattern of unlawful harassment if we do not acknowledge that some language has not changed and still carries with it the same offensive meaning as it has in decades past. We would all do well to learn from and about the past as we build a better workplace now and in the future. Droste@FELTG.com