A federal appeals court noted in the 1980s that “employers are rarely so cooperative as to include a notation in the personnel file that they fired a worker due to his/her age, race, gender, or other protected characteristic. Courts allow workers who lack direct evidence to establish the mandatory elements of a discrimination claim through different methods, such as the use of certain language that implicates a discriminatory animus. If you have endured coded comments, observations, jokes, etc., you may have a viable case in civil court, and you should talk to a knowledgeable New York employment discrimination lawyer as soon as possible.
A recent race discrimination case involving a Black lawyer in Brooklyn lays out a helpful illustration of how a worker can defeat a dismissal motion using allegations of coded language.
Just a few months into his new job, the lawyer, D.P. was already allegedly facing race-based harassment. A senior attorney in the office, M.F., made comments such as “Of course [D.P.] would be good at making fried chicken,” according to the lawsuit. During a discussion about candy, the senior attorney allegedly gave D.P. a watermelon-flavored piece and said “Here is your favorite.”
The lawsuit further contended that M.F. stood between D.P. and another Black employee and said “Hey what do we make…? An Oreo.” D.P.’s direct supervisor and M.F. also allegedly called Black people “lazy.”
After the employer fired D.P., he sued for race discrimination under the New York State Human Rights Law and the New York City Human Rights Law.
Satisfying the ‘Inference of Discrimination’ Element
One of the essential elements of a successful NYSHRL race discrimination claim is demonstrating that the adverse employment action you endured “occurred under circumstances giving rise to an inference of discrimination.”
The “inference of discrimination” standard is flexible and can be met in various ways. If, for example, your employer fired you and replaced you with someone outside your racial group, that could create an inference of racial discrimination.
Additionally, comments displaying racial antipathy may be enough. In D.P.’s case, he relied, in part, on the comments about fried chicken, watermelon, Oreos, and laziness. To oppose this, the employer filed a motion to dismiss arguing that the items the employee presented were mostly “general workplace grievances without any factual connection to” race.
‘A Deeply Historical… Racial Animus’
The trial court rightly rejected the employer’s argument. The judge explained that it is possible to convey racial animus without explicitly saying anything about Black people or Blackness. Using coded language surrounding certain food items is one way.
The judge explained that mentioning items like fried chicken and watermelon invokes “a deeply historical invidious racial animus,” as the “use of food, and particularly chicken and watermelon, to stigmatize and denigrate African Americans dates back to slavery.” This inglorious history, the court expounded, ranges from shows and films of the early 20th Century (where performers, often in blackface, would create demeaning tropes surrounding African Americans’ consumption of chicken and watermelon) all the way to the 2010s and editorial cartoons involving President Barack Obama and “watermelon flavored toothpaste.”
Viewing the lawyer's allegations through this lens, the court refused to conclude that the comments were insufficient to raise an inference of discrimination. To credit the employer’s argument -- that because the comments lacked references to “Black” or “African American,” they necessarily could not raise an inference of discrimination -- “would distort the very notion of discriminatory animus” and frustrate the purpose of New York’s laws against race discrimination, according to the court.
Sometimes, a supervisor may say something that is obviously discriminatory, like opining that “pregnancy always makes women cranky, irrational, and generally unreliable.” Those occurrences are rare. More often, people speak in coded language, whether it is calling a woman “hyper-emotional” or “too bossy,” describing older workers as less “tech savvy” or less “energetic,” commenting about a gay worker's attire choices, or making jokes about a Black worker’s consumption of fried chicken or watermelon. All of these examples potentially display a discriminatory animus sufficient to support a civil claim under the NYSHRL or NYSHRL. If you have endured a workplace like that, the zealous New York race discrimination attorneys at Phillips & Associates are here to help. Workers should not have to endure this treatment on the job and our team is committed to helping those who have to get justice. Contact us online or at (833) 529-3476 to set up a free and confidential consultation and learn how you can put our team on your side.