Diversity & Inclusion

‘Microaggression’: a new form of discrimination?

by Ryann E. Ricchio

Discussions about “microaggression” have become more common in the mainstream media. A simple Google search reveals college websites documenting students’ recently experienced microaggressions and articles analyzing microaggression from major media sources, including National Public Radio and the New York Times. This article provides the definition of microaggression, examines a recent case from a federal court that likely involved microaggression (although the conduct wasn’t described using that particular label), and provides a bottom line for employers.  Boss with employee

What is microaggression?

The term “microaggression” was first used in the 1970s by a professor of education and psychiatry at Harvard Medical School. It resurfaced in 2007 following the publication of an article in which researchers at Columbia University defined racial microaggression as “brief and commonplace daily verbal, behavioral, or environmental indignities, whether intentional or unintentional, that communicate hostile, derogatory, or negative racial slights and insults toward people of color. Perpetrators of microaggressions are often unaware that they engage in such communications when they interact with racial/ethnic minorities.”

The authors of “Racial Microaggressions in Everyday Life: Implications for Clinical Practice” described three categories of microaggression:

  1. Microassaults: explicit racial derogations attacking victims through name-calling, avoidant behavior, or purposeful discrimination;
  2. Microinsults: rude or insensitive comments demeaning someone’s heritage or identity; and
  3. Microinvalidations: communications that exclude, negate, or nullify someone’s thoughts or feelings.

Because microaggressive behavior is vague, disguised, and often leaves both parties in a dilemma about how to react, the authors hypothesized that microaggression is often more difficult to handle than overt and obvious racism.

Recent court decision

On June 19, the 7th U.S. Circuit Court of Appeals (which covers which covers Illinois, Indiana, and Wisconsin) handed down a decision in a case that originated in the Northern District of Indiana. James Nichols brought two claims against Michigan City: that he was subjected to a hostile work environment when he worked for the city as a temporary janitor and that he was fired because of his race. This discussion focuses primarily on the hostile work environment claim.

Nichols raised a number of discrete allegations about conduct and incidents that occurred during his 2½ weeks on the job, including:

  • On his first day of work, he asked four employees where the janitor’s closet was located, and they all said they didn’t know. When the same employees later saw that he had found the closet, they said, “Oh, you found it” in a way that he believed was mocking.
  • During his first meeting with a coworker, she raised a towel and waived her hand as if she was scared of him.
  • On his second day of work, a purse was left unattended in an area he was cleaning. Nichols suspected it was a ruse designed to catch him in the act of stealing because he is African-American.
  • A teacher’s assistant pointed out his grandson to Nichols and instructed him not to speak to the child.
  • As Nichols was cleaning the cafeteria after lunch, he left to take out the trash. When he returned to the cafeteria, there was debris on the floor, although no students were present.
  • Someone said to him, “You’re a black n____r.”
  • He once overheard someone reference him by saying, “Where that boy at?”

Nichols was discharged following a display of strange behavior (witnesses recalled that he was agitated, spoke very quickly, and was sweating profusely) and an altercation with another employee. The janitor position was filled with a permanent employee the following week. Although Nichols raised a number of allegations in support of his hostile work environment claim, he was unable to prevail on appeal.

The 7th Circuit found that Nichols provided insufficient evidence for a reasonable juror to conclude that he was subjected to severe or pervasive harassment. The one racial epithet he cited, which arguably came the closest to meeting the severity standard, wasn’t enough to establish liability. With respect to his other allegations, the court found that he wasn’t physically threatened, the conduct didn’t interfere with his work performance, and a reasonable fact finder wouldn’t conclude that all of the alleged comments were directed at him. The conduct also wasn’t offensive enough to be actionable. James Nichols v. Michigan City Plant Planning Department (Case No. 13-2893).

Bottom line

This case was a victory for the employer, but not without the cost of paying its attorneys to argue for dismissal at the district court level and the additional expense of an appeal. While the court didn’t use the term “microaggression,” some of the alleged conduct used by the former employee to bring a hostile work environment claim readily fits within the definition of that term.

As microaggression gains a higher profile through public discourse, you should confirm that your company policies and practices create a work environment that’s inclusive of diversity and communicate that you don’t tolerate inappropriate comments and conduct, even if it falls short of unlawful discrimination or harassment. You will undoubtedly be challenged to analyze more complex situations and interactions as employees raise microaggression as a form of harassment or discrimination.

Ryann E. Ricchio is an attorney with Faegre Baker Daniels LLP in Indianapolis. She may be contacted at ryann.ricchio@faegrebd.com.