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Don’t even try to argue slur wasn’t offensive

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in Discrimination and Harassment,Human Resources

Here’s a hint for defending your company in a discrimination case: Don’t even think about arguing that an obviously offensive ethnic slur is ambiguous or not offensive at all. It won’t get you very far with most judges.

A better approach is to acknowledge that the slur is offensive, but argue that it wasn’t used frequently and didn’t have an impact on any employment decisions.

Recent case: Yan, who was born in China, was fired from his position as a researcher with BASF after several supervisors criticized his work and expressed doubts that he was capable of performing his job up to company standards.

Yan sued, alleging that his supervisor had once referred to him as a “Chinaman.” He claimed this proved the supervisor had a racial motive for terminating him.

BASF argued that the term was subject to interpretation and that Yan had referred to co-workers as “French­­man” or “British man.”

The court rejected that argument. It said there is nothing ambiguous about calling someone a “China­­man.” The term is racist and bigoted, based on the history of the Chinese in America. (Dong v. BASF Cor­­por­­a­­tion, No. 3:11-CV-00605, ED NC, 2013)

Final note: Luckily for the em­­ployer, Yan did not include the ethnic slur in his original EEOC complaint. The claim based on the word’s use was therefore dismissed on a technicality—but not until after the court took the time to clarify how it felt about the use and the company’s defense. It’s almost as if the court wanted to warn other employers against using slurs.

The bottom line: If a term might be offensive, warn man­­agers and supervisors that they can’t use it in the workplace.

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