Are microaggressions a new legal threat in the workplace?

by Tammy Binford

An April gathering that brought together President Barack Obama, three former presidents, and civil rights leaders marked the 50th anniversary of the Civil Rights Act of 1964, a game-changing law that still guards against discrimination in the workplace and other aspects of life. The impetus for the Act was the kind of blatant bigotry responsible for mistreatment of racial and religious minorities as well as women. The Civil Rights Act has made strides against flagrant abuse, but concern over a more subtle kind of bias is now coming to light: damage caused by “microaggressions.” 

Microaggressions aren’t like old-style, overt racism and other forms of bigotry. Instead, more understated insults—such as praising an African-American employee for being articulate or admiring a Latino’s lack of an accent—are raising questions. These comments and actions are what a recent college graduate quoted in a March New York Times article called “racism 2.0.”

The concept of microaggressions has been gaining attention on college campuses for a few years and now is also causing unease for employers. Often comments or actions seen as microaggressions are inadvertent, but many worry that even unintentional insulting or demeaning behavior is a problem since it can signal a disparaging mindset. Others see the notion of microaggressions as political correctness run amuck.

Either way, employers can find themselves trying to evaluate if microaggressions are unjustified hypersensitivity or if they are genuinely damaging because of the cumulative effect of frequent subtle slights.

Take care with language

Sometimes it’s unintended or unenlightened language that causes problems at work, problems that can escalate into legal trouble. For example, Dinita L. James, a partner with the law firm Gonzalez Saggio & Harlan LLP in Phoenix, Arizona, cautions against using the term “illegal alien,” which she calls a “political hot-button term.”

“I have defended clients on charges of national origin discrimination where the charging party cited the use of that term as evidence of bias,” James says. “I don’t see the use of such terms as supporting discrimination claims in and of themselves. The risk comes when there is some sort of adverse action, and the claimant can point to that language as evidence that national origin discrimination was the true reason for the adverse action.”

When hurt feelings arise out of insensitive comments, James suggests fostering a workplace climate in which employees feel comfortable talking through the problem.

“The best advice I have for employers is to encourage employees to talk about the issues,” James says. “Often, the person making the unenlightened comments doesn’t appreciate why a coworker might find them offensive. Creating an environment in which employees feel free to raise the concerns and also are open to learning from each other is key to an inclusive workplace.”

James advocates a training program that “creates opportunities for employees to share their own concerns and encourages dialogue and discussion,” since that is likely to be more effective than a lecture format where employees passively take in information.

Lead by example

The phenomenon is not new, but it is gaining attention and spreading college student discussions to workplaces. In August 2013, the City University of New York published an article on its website telling of sessions the university conducted for staff, students, and faculty.

Kevin Nadal, psychology professor at CUNY’s John Jay College of Criminal Justice, used Obama’s remarks following the verdict in the Trayvon Martin case to illustrate the effect of microaggressions and help employees of the university identify and deal with them.

Martin was the unarmed black 17-year-old shot in Sanford, Florida, by George Zimmerman, a neighborhood watch captain patrolling the area. Zimmerman maintained that he shot Martin in self-defense, but many accused Zimmerman of racially profiling Martin. Zimmerman was eventually found not guilty.

In speaking on the case, Obama noted that many African-American men, himself included, are sometimes followed in department stores for no legitimate reason, or they may hear locks click as they walk by cars, or they may notice other actions indicating bias.

“President Obama was definitely describing microaggressions,” Nadal is quoted as saying in the university’s article. “While he did not use the actual terms, he provided examples that black men experience regularly.”

Nadal also noted that his own research found that “people of color who experience more microaggressions are more likely to have a negative view of the world, which parallels what President Obama was explaining about the context of why African-Americans are so upset by the verdict and mistrustful of the justice system.”

The university’s article says Nadal calls on supervisors and others to “lead by example, provide a safe place for back-and-forth discussion and be willing to admit when mistakes are made.”

• Tammy Binford
  Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR Web and print publications. In addition, she writes for Diversity Insight, which can be found on HRHero.com.