Consider the plight of James L. Bolden Jr., an African American who worked as an electrician for eight years for PRC, Inc. Long tormented by his coworkers, Bolden finally quit and sued his employer. He alleged that his coworkers had constantly called him “faggot,” “fool,” “dickhead,” and “dumb-shit;” that one coworker had walked over to his work area and farted directly at him; that several others had said “nigger” in his presence; and that on one occasion a colleague had warned, “You better be careful because we know people in [the] Ku Klux Klan.”86
A federal district judge, affirmed by a court of appeals, ruled that even if Bolden's allegations were accurate, they failed as a matter of law to constitute the predicate for a hostile-work-environment claim. While the judges acknowledged that the racial abuse alleged was deplorable, they found that it was insufficiently deplorable to trigger the remedies contained in Title VII. Echoing established doctrine, the judges declared that a plaintiff must prove more than the occurrence of “a few isolated incidents of racial enmity” or the utterance of “sporadic racial slurs.”87 What a plaintiff needed to show, they suggested, was “a steady barrage of opprobrious racial comments.”88 In the judges’ view, Bolden's complaints fell far short of this threshold. “The blatant racial harassment,” they pointed out, “came from only two of his co-workers on a couple of occasions,” and the “racial jokes and slurs were infrequent.”89
The appellate judges who affirmed dismissal erred in ruling that, as a matter of law, no reasonable juror could find for Bolden based on the evidence he presented. They saw a wholly one-sided case when they should have seen a more complicated controversy. The evidence was such that reasonable jurors could have disagreed—meaning that the judges should have permitted a jury to resolve the dispute.
In light of the outcome in Bolden's case, can a plaintiff successfully sue if he or she is referred to “only” once with hostility as a nigger? How about twice? Or three times? At what point does race-baiting on the job become illegal? The only way to answer such questions sensibly is in terms of probabilities, taking into account such considerations as where a lawsuit is filed and before which judge the suit will be heard.90 While certain judges stress that episodic misconduct is usually insufficient to support a hostile-work-environment claim, others make rulings and generate rhetoric friendlier to plaintiffs, including the observation that “even a single episode of harassment, if severe enough, can establish a hostile work environment.”91
Linda Jackson's fate, like Bolden's, exemplifies the variability of different listeners’ assessments of nigger even in the context of federal statutory law. Jackson sued the Quanex Corporation of Detroit, Michigan, alleging that it fostered a racially hostile work environment.92 To make her case, she introduced evidence that racial slurring insulting to blacks was rife in the workplace. She testified, for example, that at a staff meeting a superior stated, “We are up to our asses in nigger sludge.”93 Jackson also introduced evidence that racist graffiti was prevalent and that white workers constantly attempted to sabotage or otherwise injure their black colleagues. In one incident, a fellow worker had called Jackson a nigger bitch and physically assaulted her. In the aftermath, both workers had been suspended for three days, and Jackson had been denied the opportunity to work overtime.
United States District Court Judge Avern Cohn disposed of Jackson's case by granting judgment to the defendant. He found that in some instances the company had not been notified of objectionable conditions and that in others management had responded adequately. Judge Cohn also stressed that several of the racist acts that Jackson had entered into evidence either had not occurred in her presence or had not been directed at her, and that several of the actions she was objecting to were so commonplace at Quanex as to have become “conventional conditions on the factory floor.”94
A federal court of appeals reversed Judge Cohn in an unusually harsh ruling that branded his view of the relevant law and facts as “myopic.” According to the appellate court, Judge Cohn had erroneously chopped the evidence into unconnected bits that robbed the plaintiff of a fair chance to show that, in their accumulated totality, the individual episodes and incidents constituted an ugly portrait of intolerable racial hostility. Unlike the trial judge, the appellate judges deemed the defendants’ reactions to racism on the factory floor to be both tardy and deficient, insofar as management had made no effort whatsoever to discover the identity of those behind the graffiti. And unlike the trial judge, the appellate judges focused not on what had been reported to management by victims but instead on what management actually knew or should have known about racial abuse among its workers. Finally, the appellate court took strong exception to what it saw as “potentially the most disturbing” aspect of Judge Cohn's ruling: the “decision to minimize proof of persistent racial slurs and graffiti at Quanex” on the grounds that their very prevalence made them less rather than more problematic as a legal matter. Averring that Judge Cohn's reasoning reflected an unseemly class bias that would impose lower demands on blue-collar than on white-collar worksites, the appellate judges “squarely denounce[d] the notion that increasing regularity of racial slurs and graffiti renders such conduct acceptable, normal, or part of ‘conventional conditions on the factory floor.’ ”95
Were the appellate judges correct with respect to this last point? Yes, they were. It would have been a mistake to have offered safe harbor to racially abusive language because such language was pervasive and customary at a given worksite. To have done so would have encouraged inertia when clearly the express aim of Title VII and similar statutes is to uproot racist custom.96 This was not a case in which a defendant was contesting whether a particular usage of nigger should be deemed insulting; here that was conceded. Rather, the defendant in Jackson's case was arguing that, given the facts she alleged, and given the law of Title VII, no juror could reasonably conclude the plaintiff had been subjected to racial harassment that was sufficiently bad to warrant legal relief. That is an argument that the defendant rightly lost.
A fourth setting in which nigger arises as a focal point in litigation involves cases in which the judge must decide whether certain evidence that one party wants to offer to the jury should be admitted. The party seeking to exclude the evidence from the trial argues that it is more prejudicial than probative—or in layman's terms, more likely to impede than to advance the search for truth, in that its inclusion is inessential to a sound adjudication of the facts in dispute and will poison the minds of the jurors, making them unable to attend fairly to their task. Examples abound of nigger in this context.
Michael Brad Magleby, for instance, was charged with committing crimes in connection with burning a cross on the property of an interracial family. During the trial, over defense counsel's objections, prosecutors read lyrics of a song that Magleby was said to have listened to on the evening of the cross burning. The lyrics featured numerous references to nigger, as in “Nigger, nigger, get out of here.”97 A court of appeals upheld Magleby's conviction, holding that the trial judge had not abused his discretion by admitting the song lyrics into evidence.
In another case, Jack William Tocco was prosecuted for racketeering. During his trial, prosecutors played taped conversations for the jury in which the defendant and a close associate could be heard saying, among other things, that they “might win up here [in Detroit] with a nigger trial, nigger jury.”98 While agreeing with the defendant that “those particular denigrating comments were unfairly prejudicial,” an appellate court affirmed his conviction because the prejudicial comments constituted only a small portion of the captured discussion, and other evidence also pointed to his guilt.99
The issue surfaces in civil as well as criminal cases. Aleia Robinson sued the United States Postal Service for violating Title VII of the Civil Rights Act by discriminating against her on racial grounds. At trial she sought to introduce into evidence a document entitled “Nigger Employment Application,” which in her view supported her contention that raci
sm was pervasive at the Cincinnati, Ohio, facility where she worked. A parody of a standard employment application, this document listed as possible choices for birthplace the zoo, a cotton field, a back alley, and an animal hospital. Robinson stated that she was prepared to present witnesses who would testify that the parody had been widely circulated at her workplace, that no one had ever been disciplined in connection with it, and that it had prompted nothing more than laughter on the part of several supervisors. A magistrate judge excluded the application from evidence, declaring that it was irrelevant to the legal issues in question and would be more prejudicial than probative in resolving the dispute. A court of appeals disagreed, finding that the magistrate judge's evidentiary ruling had been overly restrictive. Robinson was awarded a new trial.100
In a suit charging police officers with using excessive force in making a lawful arrest, a judge excluded from evidence a portion of a tape recorded during the incident in question. The excluded portion would have revealed that an arresting officer shouted at one point, “Did you get that nigger?”101 A court of appeals reversed and granted the plaintiff a new trial. Exasperated, the appellate tribunal declared, “It is difficult to understand why [the trial judge] believed that all of the words uttered at the time of the arrest and beating were probative and helpful to the task the jury faced, except the phrase containing the word ‘nigger.’… Because the district court did not state for the record any reason for excluding this evidence, and neither the parties nor this court can discern any reason for its exclusion, we hold that the district court abused its discretion.”102
Of course, the most famous evidentiary ruling involving the N-word came in response to efforts to bring a witness's use of the term to the attention of the jury in the murder trial of O. J. Simpson.103 In that case, Simpson was charged with murdering his former wife Nicole Brown Simpson and an acquaintance of hers named Ronald Goldman. The police had allegedly found incriminating evidence at the murder site and at Simpson's residence, including a bloody glove presumably worn by the murderer. Simpson's attorneys maintained that the bloody glove had been planted by police officer Mark Fuhrman.
The prosecutors requested that the presiding judge, Lance Ito, prevent defense counsel from questioning Fuhrman with regard to his racial attitudes, including his alleged penchant for derogatorily referring to blacks as niggers. The title of the prosecution's motion—“People's Motion … to Exclude from Trial Remote, Inflammatory, and Irrelevant Character Evidence regarding L.A.P.D. Detective Mark Fuhrman”— revealed its essential argument. Pleading for the judge to exclude any inquiry into Fuhrman's linguistic habits, prosecutor Christopher Darden declared that because the N-word “is the filthiest, dirtiest, nastiest word in the English language,” references to it “will blind the jury. It will blind them to the truth. … It will affect their judgment. It will impair their ability to be fair and impartial.… If you allow [the defense] to use their word and play this race card, not only [do] the direction and the focus of the case change, but the entire complexion of the case changes. It is a race case then. It is white versus black, African American versus Caucasian, us versus them, us versus the system.”104
The defense responded with a dual argument. First, it maintained that evidence relating to Fuhrman's racial views was relevant to its theory that for reasons of racial animus, the officer had planted evidence. Second, it derided the notion that testimony regarding Fuhrman's use of the word nigger would prevent jurors from sensibly evaluating the evidence at hand. It was “demeaning,” defense counsel Johnny Cochran argued, to suggest that black jurors—“African Americans [whose forebears] have lived under oppression for two hundred–plus years in this country,” and who themselves had lived with “offensive words, offensive looks, [and] offensive treatment every day of their lives”—would be unable to deliberate fairly if they were made aware of a witness's racial views, as evidenced in part by his usage of the N-word.105
Judge Ito rightly decided to permit Simpson's attorneys to ask Fuhrman whether, over the preceding ten years, he had ever used the N-word. Fuhrman denied that he had—a statement that, instead of ending the matter, set the stage for a second controversy. Several months after Fuhrman's denial, audiotapes were discovered on which he was heard using the N-word repeatedly and with relish. The defense attorneys, not surprisingly, sought to introduce this new evidence in its entirety. The prosecution, for its part, sought to prevent or at least to minimize the jury's exposure to the tapes. Judge Ito compromised: he permitted the jury to hear Fuhrman say “nigger” twice and also allowed the defense to elicit an acknowledgment that in the taped conversations he used the N-word some forty-one times. The jury subsequently acquitted Simpson, in perhaps the most hotly debated jury verdict in American legal history.
Like every other significant feature of American life—including cigarettes, guns, pornography, drugs, stock trading, sex, religion, and money—nigger is thoroughly enmeshed in litigation. The disorderly diversity of the conflicts in which it figures is remarkable. The following three cases illustrate that variety.
Otis Ross successfully sued the Douglas County, Nebraska, correctional facility for violating federal antidiscrimination law. Ross, a black prison guard, complained of being subjected to a constant barrage of abuse by a supervisor who addressed him as “nigger” and “black boy” and referred to Ross's white wife as “whitey.” The abusive supervisor was also black. The county posited that as a matter of law, blacks could not subject other blacks to a racially hostile workplace. The judges, however, wisely rejected that argument, quoting Thurgood Marshall's observation that given the mysteries of human motivation, “it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.”106
In a second case, a white woman sued for and won a divorce after forty years of marriage and three children. She alleged that her husband had subjected her to cruel and inhuman treatment due to his rage at their daughter's decision to marry someone whom the court described as “a gentleman of Puerto Rican descent.” The husband had refused to attend the wedding and would not speak to his daughter or acknowledge his son-in-law. Infuriated by his wife's acceptance of the marriage, he told her that her presence made him feel like puking. For good measure, he repeatedly called her a nigger lover.107
A third memorable case arose from one man's efforts to effectuate Lenny Bruce's strategy to defang nigger through continuous use. Russell Lawrence Lee petitioned a court to change his name to “Mister Nigger.”108 His intention in doing this, he wrote, was to “steal the stinging degradation—the thunder, the wrath, the shame and racial slur—from the word nigger.”109 A trial court, affirmed by the California Court of Appeals, rejected his petition. The appellate court maintained that while the petitioner had a common-law right to use whatever name he chose, the judiciary did not have to assist him in his experiment and could, in this instance, properly refrain from doing so, since the “proposed surname is commonly considered to be a racial epithet and has the potential to be a ‘fighting word.’ ”110
These three cases, unusual though they all are, nonetheless represent a type of conflict that judges will continue to face. For nigger and its variants will keep showing up in court so long as they remain key words that tap into and reflect powerful emotions. For the forseeable future, at least, nigger will constitute a peculiar, resilient, ever-changing fixture in the American jurisprudence of epithets.
CHAPTER THREE
Pitfalls in Fighting Nigger: Perils of
Deception, Censoriousness,
and Excessive Anger
After the Civil War, a former master approached a former slave while she was tending livestock. “What you doin’, nigger?” he asked, as he had probably done on many previous occasions. But this time her response was different: she replied, “I ain't no nigger. I's a Negro and I'm Miss Liza Mixon.” Stung, the former master chased his former slave with a whip.1
Until th
e civil rights revolution of the 1960s, whites in the South typically refrained from addressing blacks as “Mr.” or “Mrs.” but instead called them by their first names or by titles signifying a senior with servile status—titles such as “Uncle” or “Auntie.” Addressing all black men as “boys,” regardless of their age, was another way for whites to observe Jim Crow etiquette.
Positive modifications to such practices have been effected only through struggle. To avoid or at least minimize belittlement, some blacks made a habit of identifying themselves only by their last names. Blacks furiously objected to Negro being spelled with a lower- as opposed to an uppercase N, and on March 7, 1930, the editors of the New York Times announced that the paper would henceforth capitalize the N in Negro. The U.S. Government Printing Office followed suit three years later. Within a decade, capitalization would become the rule at the Supreme Court as well.2
Referring to blacks derogatorily as niggers, however, was the custom to which blacks objected most strongly. In 1939, when David O. Selznick was in the throes of producing Gone With the Wind, he received hundreds of letters from blacks warning him to remove all “nigger” references from his upcoming film. The letter writers were concerned because the novel on which the film was based was full of such references. So, too, were early drafts of the film script. Initially Selznick sought to solve the problem by promising that the N-word would not be spoken by any white characters, but once he had been made aware of the intensity of blacks’ feelings, he resolved to prohibit its use entirely and took pains to publicize his decision. A form letter declared that his studio had been “in frequent communication with Mr. [Walter] White of the Society for the Advancement of Colored People, and has accepted his suggestions concerning the elimination of the word ‘nigger’ from our picture.”3
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