I’m all for zealous advocacy, but there are some arguments that are too stupid to be made in federal court. Arguments that use of the N-word in the workplace is fine as long as it’s just a joke fall squarely into that category.
Here’s the background:
Spencer Marin was a legal secretary at the New York law firm Quinn Emanuel Urquhart & Sullivan, working in California as part of a litigation team on a patent trial. His supervisor was a woman named Yllen Cruz. One night, during a team dinner, a black team member offered, and subsequently changed her mind about sharing of her food with Ms. Cruz; according to Marin’s complaint, Cruz responded, “you’re a re-nigger.”
That team member immediately said that she “did not know how [she felt] about that word,” to which Cruz replied, “just eat and you’ll feel better” according to documents. Spencer, who is also black, complained, and was immediately booted from the trial team and sent back to New York. According to Spencer, the N-word incident wasn’t the only racist comment Cruz had made; the supervisor also allegedly said Spencer was “not black enough” and asked him whether he had ever been arrested. [Sidebar: from Marin’s complaint, it sure sounds like Cruz is a real character. In addition to the repeated racist comments, Ms. Cruz repeatedly asked Marin if he was gay, questioned if he was really in a relationship with a woman, called him a “fairy,” and said that she “dreamed” of having a gay assistant. Charming.]
Marin sued Quinn Emanuel Urquhart & Sullivan for racial discrimination based on hostile work environment. On Friday, the case proceeded for oral arguments on a motion to dismiss before Judge Valerie Caproni of the Southern District of New York. At the hearing, defense lawyers argued that Cruz hadn’t created a hostile work environment by using the N-word, because 1) it was directed at someone else, and not at Marin himself; and because 2) Cruz had just been joking.
According to the transcript of the oral arguments, the defense argued that interpreting Cruz’ use of the N-word as “hostile” would “undermine” the legal standard in discrimination cases, because after all, it was only a joke. They did backpedal a bit, and offer, “we don’t find it humorous and we don’t think it’s a good joke. We don’t like it and we wish it had never been said.”
Judge Caproni, however, wasn’t having it. In her ruling, she relied on a delicious combo of past precedent and basic common sense:
“The Second Circuit has held more than once that “no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racially epithet, such as nigger, by a supervisor in the presence of his subordinates.” That’s Rivera v. Rochester Genesee Regional Transportation Authority, 743 F.3d 13 11, 24.”
“I was surprised, notwithstanding the complaint, the defendant has attempted to cast the use of the N word as a poor attempt at humor or a bad pun. Remarks such as those are unacceptable in a civilized conversation. When they happen in a workplace, particularly when they come from a supervisor, not only are they unacceptable, they can be a basis for civil liability.”
This case exemplifies everything that can be awful about doing defense work. The lawyers know damn well that Cruz’s comments were awful, racist, hostile, and unacceptable. They know that those comments are exactly the kind of things on which discrimination claims are built. They’re trying to defend aa man for using racist slurs, and trying to spin Marin’s being removed from the trial team as if it was NBD. But as sworn representatives of their client, they are making any arguments possible, hoping that somehow, something works in their client’s favor. It’s gross, but it’s just the way the adversarial system works.
Judge Caproni’s order doesn’t mean that Spencer Marin wins his case against his former employer – but it’s some pretty good foreshadowing about how the defense argument are going to be received. Law & Crime spoke with employment law expert and partner at KlugerHealey, William Healey, who said it was, “not surprising that the evidence adduced by the plaintiff was enough to defeat summary judgment.” Healey explained that the underlying case, though, may be tougher to prove:
“To create a racially hostile work environment, slurs usually must happen with such frequency and be so open and derogatory that it alters the working environment or atmosphere. That’s often not an easy threshold to meet.”
True, we’re only at the summary judgment phase — and Judge Caproni’s order simply means that the case is allowed to proceed to trial and should not be dismissed based on the law alone. Still, my money is on a quick and expensive settlement. The N-word is just one of those things that tends to translate into multiple zeroes, no matter the context.
This is an opinion piece. The views expressed in this article are those of just the author.