August 1, 2010

FOLLOWING THE PRESIDENT’S ADVICE, AND TALKING ABOUT RACE “AROUND THE WATER COOLER,” COULD GET YOU SUED:

I certainly agree that it would be good for people to discuss racial issues in a truthful, mature, and responsible way. But I’m pretty sure that discussing such issues around “water coolers” is pretty dangerous advice, at least if one really wants a discussion in which people aren’t afraid to air their views.

1. To begin with, any arguments that some might see as racist could lead to complaints and even lawsuits about a supposedly “racially hostile work environment”; and while such lawsuits are hard for plaintiffs to win, no employer wants to have to fight them, and no employee should want to have his speech be the subject of such suits.

As one Sixth Circuit decision put it, “In essence, while [harassment law] does not require an employer to fire all ‘Archie Bunkers’ in its employ, the law does require that an employer take prompt action to prevent such bigots from expressing their opinions in a way that abuses or offends their co-workers. By informing people that the expression of racist or sexist attitudes in public is unacceptable, people may eventually learn that such views are undesirable in private, as well. Thus, Title VII may advance the goal of eliminating prejudices and biases in our society.” When some judges (not all, fortunately, but some) take such a view, smart workers ought to be careful about any speech that some might perceive as “expression of racist … attitudes” at work; and even someone who is trying hard to be “truthful and mature and responsible” in discussing race might certainly say things that some offended listeners view as racist.

Read the whole thing.

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