Is It Legal To Use The 'N-Word' At Work?

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On the weekend, Netflix's US communications chief Jonathan Friedland was fired from the company for "descriptive use of the N-word" in the workplace. In an internal memo to staff, CEO Reed Hastings explained that Friedland had been let go for exhibiting "unacceptably low racial awareness and sensitivity."

Meanwhile, here in Australia, much has been made of "the right to be a bigot". This got us wondering - is it legal to terminate an Australian employee for using a racial epithet? Or would they have a case for unfair dismissal? Let's find out.

First some background for those unfamiliar with the Netflix story. On June 23, Netflix communications chief Jonathan Friedland, who had been with the company for seven years, was abruptly fired following a string of controversies involving the use of the "N-word".

Significantly, Friedland used the word not once, but twice and demonstrated to employees that "he didn’t care and didn’t accept accountability". Rather than rehash the whole incident and fallout here, we'll let Hastings' company memo speak for itself:

The first incident was several months ago in a PR meeting about sensitive words. Several people afterwards told him how inappropriate and hurtful his use of the N-word was, and Jonathan apologised to those that had been in the meeting. We hoped this was an awful anomaly never to be repeated.

Three months later he spoke to a meeting of our Black Employees @ Netflix group and did not bring it up, which was understood by many in the meeting to mean he didn’t care and didn’t accept accountability for his words.

The second incident, which I only heard about this week, was a few days after the first incident; this time Jonathan said the N-word again to two of our Black employees in HR who were trying to help him deal with the original offense. The second incident confirmed a deep lack of understanding, and convinced me to let Jonathan go now.

For his part, Friedland acknowledged that he had made a mistake, albeit somewhat begrudgingly:

Now, it's worth noting that Friedland did not use the word to directly attack another employee. Nor was he making a racist joke or describing a group of people with a racist slur. Rather, he was discussing words that offend in comedy and gave the n-word as an example. This is important, as context can determine what disciplinary action will be taken in an Australian workplace (if any).

Currently, most of Australia's anti-discrimination workplace laws center around employer behaviors, such as refusing to hire someone based on their race or deliberately withholding training and promotion opportunities.

However, the law does provide some limited protections to those on the receiving end of racial slurs. Section 18C of the Racial Discrimination Act states the following:

It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

At the same time, the Act attempts to protect everybody's right to communicate freely. Statements that are made "reasonably and in good faith" are not unlawful.

In this context, Friedland's comments likely wouldn't qualify as racial discrimination or vilification. It should also be noted that unlawful acts are not actually criminal - it's up to the aggrieved party to pursue damages in court. (By contrast, criminal acts are pursued by the police and can result in jail time.)

With that said, most workplaces have their own policies that forbid the use of racial slurs, for any reason. As legal services business LegalVision explains on its blog:

[As an employer], you should make it clear at the outset that you will not tolerate racist behaviour in your workplace, and try to encourage a culture amongst your employees that promotes inclusion.

There are several policies that your business can implement setting out what you expect regarding employee behaviour. These documents should also describe what action you can take against employees that engage in this behaviour such as warnings or even dismissal.

In other words, using the 'n-word' or similar racial slurs is not strictly illegal in the Australian workplace. However, you could still be fired for violating your employment contract, compromising your employer's inclusion policies or otherwise damaging their reputation.


Did you just catch yourself wondering if something was legal or not? Let us know and we may be able to answer it in our next Is It Legal? feature.


Comments

    Now, it's worth noting that Friedland did not use the word to directly attack another employee. Nor was he making a racist joke or describing a group of people with a racist slur. Rather, he was discussing words that offend in comedy and gave the n-word as an example. This is important, as context can determine what disciplinary action will be taken in an Australian workplace (if any).

    I find that interesting. I was assuming that he'd been sacked because he used it in a derogatory manner *against* a person or group of people, not as a matter of fact term in a discussion about it's usage. I'd love to know what their attitude would have been to someone using other derogatory terms in a similar discussion. Substitute cracker as the term, would he have been sacked?

      It's not quite the same thing. Using "cracker" in a workplace dominated by whites (especially at the management level) doesn't really take anyone's power away or leave them feeling marginalized and vulnerable.

        Cracker also does not have the history behind it that the n-word has. The two are not even remotely comparable.

          That's irrelevant (or should be). Is it a racist term or isn't it? If it's a racist term then it's offensive and should be considered to be just as bad.

          @chrisjager: I'm not sure that argument is valid in the context that he was speaking in. Your article points out that he used it in reference to media usage of the word. He wasn't trying to offend the coworkers when he used it but to get opinions on offensive words (again based on what was said in the article).

            Treating everything evenly is a pragmatic goal at first glance, but language is defined by context and it would ultimately be incomplete not to factor that context (including historical) when evaluating the meaning and effect of words.

            For example, it's probably fine to call your partner "sweetie", but it's not fine for a stranger to do it, even if the intent (term of endearment) is essentially the same in both cases. The context of your relationship and the history you have with your partner is fundamental to what the word's meaning and effect is.

              I understand what you're saying, however it's a poor example. Lots of people actually do call random strangers "sweetie" (or "dear" or "love"). Especially older women to younger people.

              And while we're on the subject of context, that's part of the original argument. Heck I even mentioned it in the last post.

      Cracker is not in anyway similar to the N-word other than them being racial terms.

      The N-Word has a long horrifying history behind it. Cracker does not. Comparing the two is illogical.

      So no, He would not have been sacked, Because cracker is not comparable at all to using the n-word.

        With respect dj, I think its a fair question. Was it just the word itself being deemed unacceptable? Would it have mattered if he'd used any of the 40 other terms considered a racial slur against African background? Or other terms for other races?

        Did this guy deserve to lose his job, just for giving an example of where such a negative word is considered acceptable? It wasnt a discriminatory use, it was almost the opposite, showing how big a minefield the issue is.

        Not saying its proper to use the n-word in general conversation, but that wasn't the case here. It was a meeting specifically on the topic of sensitive words. If theres ever a time its going to come up, that's one of them. So how far does that zero tolerance go? If that situation cost someone their job, what else would?

          That word is incredibly loaded and offensive, especially in America.

          I think he probably should have asked first if anyone in the room would be uncomfortable with him using racial slurs while discussing the topic at hand. Or y'know, just say "En-word" and let them fill in the blanks.

            Yeah I know how loaded it is, but again, was it worth losing his job over? The context is important, and plays a major role in whether something should be considered offensive.

            Now, it's worth noting that Friedland did not use the word to directly attack another employee. Nor was he making a racist joke or describing a group of people with a racist slur.
            I imagine the conversation broadly went something like this: "If a comedian uses n*****, people just laugh, but we'd get the book thrown at us". How does that intent change simply because 'N-word' is substituted?

            If someones offended by one and not the other, the problem is with them, not the situation.

            I went through this as a kid, and its not nice. But the worst insults I had used zero trigger words, and they still hurt now, some 40 years later. Other friends use all sorts of trigger words with me, and it means nothing. Its just a nickname, used to identify me within the group. The context matters, and with Friedland, the context is that the use came in a situation raising the very issue.

            Being used in passing is far different to discriminating, so again, what did he do that he deserved to lose his job over? There are hundreds of ethnic slurs around the world, which ones get you fired, and which ones are OK?

              was it worth losing his job over?

              It's impossible for us to say, really. Presumably the staff members who made the complaint know Friedland better than you or I do.

              Perhaps he used it with a flippant and arrogant disregard for the black employees in the room? Or maybe it was deemed gratuitous and unnecessary (honestly, who *doesn't* know that the n-word may cause offence in comedy?)

              There's a whole host of reasons using the word could be considered inappropriate in the supplied context.

              How does that intent change simply because 'N-word' is substituted?

              Because "en-word" shows a conscious effort to consider the feelings of those present.

                @grunt articulated what I was getting at better than I did. We'll obviously never know exactly what was said so it's hard to guess intent and context beyond what we read in articles. I do feel like the situation is highlighting the situation the guy was pointing out. It's ok for a comedian (or Quentin Tarantino) to use the word in a movie but not a person in a serious discussion?

                I feel like we're treating people like little kids. Like when you say peepee to your 3 year old instead of penis. I'm all for falling hard on people who use racist comments as insults or slurs, but I find it hard to justify that if it's a serious rational discussion.

                  As I said, it would have been prudent to ask whether anyone in the room had a problem with him using a racial slur before making his point - especially if black people were present.

                  As a manager (and communications chief!), he really should have known not to drop the N-word in front of employees without checking it was okay first, regardless of the context.

                  @chrisjager & @zombiejesus: You might be right, especially about the first meeting. However, I'd think a single non-insult use of the word isn't a sackable offense - just a warning. Which appears to be the case.

                  Then we come to the second meeting. Again, based on the article, he was discussing the events of the first incident with HR. Surely it's appropriate to use the actual word for clarity in that situation? But from the look of it that was the cause of his sacking.

                  I'd have thought that in order to be a HR person you'd have to have a reasonably thick skin (you are likely to be dealing with assholes at least some of the time). So it seems a bit like an overreaction to sack him after that meeting.

                  Of course, without transcripts/recordings it's hard to judge. The way the articles put it out it sounds like he said it matter of factly as in "this is what I said in the meeting". But maybe it wasn't the case, maybe he dropped the word during the second meeting. It's a problem with a lot of these cases - we third parties don't know what was *actually* said or the tone it was said in.

              The article does note that it was the second occasion he used the word that led to this. The meeting discussing comedy was the first occasion, but he used it again a few days later while talking to the two black HR employees that were trying to guide him through the initial occasion.

              I think that does reflect poorly on him. I know if I'd said something inadvertently offensive, I sure as hell wouldn't say the same offensive thing to the HR staff in charge of handling the incident.

                I'm not sure that changes things ZJ. The first use can easily lead to the second, where he might just have explained what happened and the same instant offence came about for the mere use of the word. Those HR people surely knew what the issue was, and that the discussion was going to be a touchy matter to them. Why were they put in that position?

                My point is pretty simple though. Would the same thing have happened if it was any of the hundreds of other racial slurs around the world? I seriously doubt it. For the record, yes, it does reflect poorly on him, but badly enough to lose his job over it? That's seriously snowflake territory.

                It wouldn't surprise me if he was talking to a lawyer about whether its unfair dismissal or not.

                  I don't doubt for a moment that if it had been another minority slur, the same thing would have happened. At one company I worked at years ago, a South African employee was dismissed almost instantly for using a Jewish slur, and that was in a company that was widely considered a 'boys club' with an older way of thinking.

                  Bottom line is he broke company policy, not once but twice. The first time could have been excused as a misunderstanding, the second evidently wasn't. There's no grounds for unfair dismissal there, Netflix was well within their rights.

                  @zombiejesus

                  Bottom line is he broke company policy, not once but twice

                  This is the core of it. Did he? This isn't a slur, it was used in a very specific context. I don't think any other word, in that same situation, would have garnered the same response.

                  This wasn't a derogatory use of the word, putting down someone based on race. There was no discrimination. If there was, theres no discussion, the guy deserved it. But there ARE times the n-word is considered acceptable, so its taboo status seems somewhat selective.

                  I just see this as a reaction to shut down an issue, regardless of reason, to avoid potential backlash. It doesn't address the issue, it brushes it under the rug.

                  Netflix is pretty famous for having a strongly defined set of company policies and culture. While I don't have their company policy on hand, I fully expect this kind of thing would have been covered by it. Their culture document is public on their website, if you're curious about that side of it.

                  I think there are contexts you can use the word. Academically, after checking with the audience first and respecting their response, mainly. I don't get the impression that's what happened here, based on the incomplete picture we have available. People need to be conscious that things they say or do may be offensive even if no offence was intended, an awareness critically important to performing a job like chief of communications.

                  Even putting intent aside (and I make no judgement on whether he intended offence or not, we don't have enough information), I gave an example to skrybe above of how who says something is often as important as what is being said or why it was being said. The example is that it's appropriate for you to call your partner "sweetie" but it's not okay for a stranger to say the same, even if all else is equal (same word, same affectionate intent). This is a different scenario but the importance of the 'who' in the context still applies.

                  I replied to @zombiejesus "sweetie" comment earlier. But I wanted to look at the idea of academic discussion. The impression I got from the articles is that this is what the guy felt he was having. I've pulled out a quote from the article;

                  The first incident was several months ago in a PR meeting about sensitive words. Several people afterwards told him how inappropriate and hurtful his use of the N-word was, and Jonathan apologised to those that had been in the meeting. We hoped this was an awful anomaly never to be repeated.

                  This to me is the academic setting - it's a discussion about sensitive words. Maybe he should have asked permission to use it beforehand, but again we're not privy to the transcript. Maybe the fact that sensitive words were going to be mentioned and discussed was implicit due to the subject matter so he didn't feel he needed to ask permission.

                  It also seems to have been responded to reasonably, he was confronted about it and apologized. The fact that his behaviour was changed seems to be bourne out by the second paragraph about a later meeting. Why should he bring it up in a later meeting? He's already apologized to the people involved so it'd just be re-opening old wounds.

                  "Three months later he spoke to a meeting of our Black Employees @ Netflix group and did not bring it up, which was understood by many in the meeting to mean he didn’t care and didn’t accept accountability for his words."

                  Which brings us to the final paragraph which to me is where I have the biggest problem;

                  The second incident, which I only heard about this week, was a few days after the first incident; this time Jonathan said the N-word again to two of our Black employees in HR who were trying to help him deal with the original offense. The second incident confirmed a deep lack of understanding, and convinced me to let Jonathan go now.

                  This to me is out of order, it's referring to an event that happened just after the first and was him and HR discussing the first incident. If it's dealing with what was said the first time round then it seems appropriate to discuss what was literally said. I think a meeting like this has to be absolutely clear and factual with no pussy footing around with PC language. So unless he used the word as a slur against the HR people I don't have an issue with it in that context.

                  To me this is where the matter should have ended. He said a bad thing and got in trouble. He discussed the bad thing frankly with HR. IF after the HR meeting he repeated his behaviour (and there is no indication that he did) then it might be grounds for termination. But it looks like he'd changed his behaviour and still got sacked. That just doesn't seem right.

      I've never heard of "cracker" to describe someone. Will I find stuff I don't like if I Google it?

        Google 'racial slurs' and look at the Wikipedia entry. I recommend the grouping by ethnicity subgroup for a bit of sorting, but any of the variations will do the job. Then you get to see the etymology for most of them without risk of a NSFW entry.

    Just remember the golden rule, you have to be white to be racist.

    oh look the comments section is devoling into the same thing as always. its only possible to be racist to black people and they can say whatever the fuck they like about white folk cause that aint racist.

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