Employers, don't let your employees use the "M" word -- it may be harassment.

That is not a typo. Watch out for the "M" word if you don't want to be accused of harassment based on race, national origin, or color.

The "M" word is "monkey."

Now me, if I were to associate a human being with "monkey," it would be the white guy Joe E. Brown. And who can forget all the monkey-related grief poor, white George W. Bush got? However, the term "monkey" is included on Wikipedia's list of ethnic slurs, and it's not a slur against white guys. Some of you may remember the uproar in George Allen's senatorial campaign in Virginia in 2006 after he referred to a Democratic campaign worker as "macaca," a variation on macaque, that is reportedly used by European colonialists on the African continent to refer to native Africans. (The campaign worker Allen was referring to was actually Indian, and Allen denied that he intended his comment as a racial or ethnic slur. He has since publicly admitted that he should never have used the term.)

See what I mean?

And WAY back, the late sportscaster Howard Cosell got in trouble for saying "Look at that little monkey run" in reference to an African-American football player, Herb Mulkey of the Washington Redskins. Cosell, who was buddies with, among others, Muhammad Ali, denied that he meant the comment as a racial slur. He said that he called his own grandchildren "little monkeys," and according to a blog about Cosell, he also referred to white athletes as "little monkeys," including Glenn Hubbard of the Atlanta Braves and, before that, Mike Adamle of the Kansas City Chiefs.

Well, enough history. A federal judge in the Eastern District of New York decided last week that a  "non-white Hispanic" guy was entitled to a jury trial for hostile work environment harassment because his co-workers called him "monkey." 

If you read the decision, you will see that they called him "monkey" a lot. Too much. But, in the company's defense, please note:

1-There was no evidence of any anti-Hispanic slurs or prejudice in the work environment.

2-The company employed other Hispanic workers, and there was no evidence that any of them were called "monkey."

3-There was evidence that the co-workers started calling the plaintiff  -- and only the plaintiff -- "monkey" after the plaintiff referred to himself as a "silver-back gorilla" because he had gray hair.

4-At least one of the co-workers who called the plaintiff "monkey" was Hispanic himself.

5-All of the workers (this was a small moving company) had nicknames for each other, including one unfortunate guy who was called "Toilet Bowl." I'd rather be the most intelligent of the non-human primates than a potty, but maybe that's just me.

Is this picture inappropriate?

In my opinion, all of the above is pretty strong evidence (as in, summary judgment for the employer!) that the "monkey" name was not intended as an ethnic slur, even though it appears that the plaintiff viewed it as an ethnic/racial slur. 

The defense argued that the term was race-neutral unless it was used against African-Americans.  The judge said this was an "astonishing proposition." In this case, the plaintiff was allegedly very dark-skinned, and the judge said, "Like Latin America itself, the term [Hispanic] encompasses a wide range of races and ethnicities, and discrimination sometimes occurs within these groups."

Fair enough. But I still think there needed to be some evidence that he was called "monkey" because he was Hispanic, or because he had dark skin, and the burden is supposed to be on the plaintiff, not the defendant, to present enough evidence to create a genuine issue of material fact.

Unfortunately for this employer, I was not the judge. Because the real judge was merely denying the company's motion for summary judgment, the company cannot directly appeal the decision but will have to go through the expense and difficulty of a trial on the plaintiff's harassment claims.  (Or settle.) Only after the company loses at trial, if it does, can it appeal and argue that this harassment claim should never have gone to a jury in the first place.

Of course, it's always possible that a jury will feel the way I do and will find that there isn't enough evidence that the "monkey" comments were directed at the plaintiff's race, ethnicity, or color.

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There are at least three things employers can learn from this decision:

*Take it seriously whenever an employee complains about being offended by nicknames, teasing, etc., from co-workers, even if the teasing does not strike you as overtly "EEO"-related. In this case, the plaintiff complained repeatedly to the company's owner, who told him to "roll with the punches" and "just deal with it." If an employee is offended by teasing, then tell the other co-workers to back off. If it continues, discipline them. If they still don't get the message, you'll have to ramp up the discipline, and maybe even fire them. Please note that I'm not saying you have to outlaw all teasing -- but you should make sure that employees are respectful of each others' feelings to the extent that you can. This is important for avoiding harassment claims, and also -- assuming the legal cause of action catches on -- workplace bullying claims.

*Don't forget that "color" discrimination is just as illegal as race or national origin discrimination. If it looks like someone is being teased or harassed because of color, then you need to take that as seriously as you would a complaint about sexual harassment. Color cases are relatively rare, but they do occur. For example, light-skinned African-Americans might pick on a dark-skinned African-American, or vice versa. In this case, it sounded as if light-skinned Latinos may have been picking on the plaintiff because he was dark-skinned -- at least, that's the way the judge looked at it.

*"Roll with the punches," or "deal with it" are almost never good responses to complaints about bad treatment at work. 'Nuff said?

Have a great Labor Day! And next Thursday, September 6, at 3 p.m. Eastern, Stephanie Thomas of The Proactive Employer will be hosting a webcast featuring Jon Hyman, Phil Miles, Eric Meyer, and moi in a "Dear Abby" for employers with bizarre HR and legal questions. (Normal questions need not apply.) You can call, email, or tweet your bizarre questions, and we'll try to field them as best we can. It should be a blast -- please tune in!

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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