Thursday, July 26, 2018

TallBear v. Perry: Are Redskins fans racially harassing their Native American coworkers?

A few years ago, the name of the Washington, D.C. professional football team, the "Redskins," became the subject of a national controversy, and President Obama even entered the fray by urging that the team's name be changed. Things take a while to work their way through the court system, but now we finally have a case where someone has brought an EEO claim based on the use of the name. In TallBear v. Perry, No. 17-0025 (DLF) (D.D.C. July 24, 2018), Jody TallBear alleged that she was subjected to unlawful racial harassment by her repeated exposure to the Redskins name and logo. Rejected the claim, Federal District Court Judge Dabney Friedrich accepted at "face value TallBear's claim that the use of the Redskins name is deeply hurtful to her," but concluded that EEO law "does not require the country's employers to stand aggressively on one side of [a] public debate by banning employees from referring to their local professional football team by name in the workplace." Friedrich further noted that a reasonable person would not conclude that the coworkers were using the term as a racial slur, and while the term may offend some individuals, it continued to be commonly used to refer to the Washington football team.

In my view, Judge Friedrich reached the right conclusion. The question is whether a reasonable person would perceive the conduct as racially hostile, and key to this determination is social context. In other words, it is not enough that the complainant have personally been offended. Her offense must have been reasonable. Moreover, the conduct must have been serious or frequent enough that it made it more difficult for her to do her job. Importantly, this is judged from the perspective of a reasonable person in the complainant's shoes, which means a reasonable person of the same race. 

Although the intent of coworkers in using a term is relevant, it is not dispositive. For instance, if a white worker jokingly uses the n-word, that might mean that the term is less offensive, but it's still a racial slur. The term "redskins," however, clearly does not fall into the same category as the n-word. Tellingly, in the midst of the debate about the Redskins' name two years ago, the Washington Post conducted a poll, which revealed that 90% of Native Americans are not bothered by the Washington Redskins' team name. So unlike the n-word or the c-word, it seems unlikely that the r-word can reasonably be considered offensive on its face -- at least, for now. In 10 or 20 years, though, who knows?

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.