The way an individual speaks can convey more than the actual words he or she uses. Body language, tone of voice and other mannerisms (such as rolled eyes) are also powerful communication.
But that doesn’t mean that an otherwise neutral statement delivered with what an employee thinks is a demeaning tone can be the sole basis for a lawsuit. Judges don’t want to get into the business of interpreting body language based on what an employee thinks she saw.
Recent case: Rosa had a one-year teaching contract with Ohio State. She was born in Spain and was educated at Barcelona University.
After her boyfriend, who also worked for the university, filed an EEOC complaint, Rosa learned that she had not been selected for a permanent faculty position and that her contract would not be renewed.
She sued, alleging retaliation for her boyfriend’s complaint.
As evidence, she pointed to a discussion of her qualifications during the faculty selection process. One of the decision-makers questioned her qualifications because he doubted the reputation of Barcelona University. Rosa claimed he had used a condescending tone of voice.
The court tossed out Rosa’s case. It noted that tone alone doesn’t take a neutral statement and turn it into a discriminatory one. Otherwise, courts would constantly be forced to interpret body language and other subtle communication cues. The court also noted that the university had a good explanation for why it didn’t renew Rosa’s existing contract. It no longer had grant funding for the job. (Rodriguez-Monguio v. Ohio State, No. 11-3185, 6th Cir., 2012)
Final note: It’s a different story if there is a clear discriminatory meaning to the underlying comment. For example, using the pejorative term “boy” to address a black employee might be enough for a lawsuit.