The Volokh Conspiracy
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Distinguishing Uses of Slurs in a Government Workplace
From In the Matter of Ruggiero, decided last month by the N.J. intermediate appellate court:
Ruggiero was accused of workplace misconduct and the County sought to terminate her. That sanction was first rejected by a hearing officer and then an Administrative Law Judge (ALJ). The ALJ found a six-month suspension, as had been recommended by the hearing officer, to be a more appropriate penalty. Both parties filed exceptions to the ALJ's findings leading to the decisions by the CSC{, which reduced [the] disciplinary sanction … to thirty working-days, ordered [Ruggiero's] reinstatement, and awarded her back pay}….
The following facts are derived from the record. In October 2018, on a date that no one can recall, Ruggiero, a self-identified woman of color and a fifteen-year employee of the Camden County Purchasing Department, was overheard by … two white colleagues, to have said the word "nigga." {The inclusion of this word, repeatedly, in this opinion while understandably jarring to read, is necessary to provide context for the reader and an accurate recitation of the record. The question of how legal discussions should deal with fact patterns that include epithets is a topical one. Randall L. Kennedy & Eugene Volokh, The New Taboo: Quoting Epithets in the Classroom and Beyond, 49 Cap. L. Rev. 1, 12 (2021) (How do lawyers and judges deal with this issue? The answer, it turns out, is that they routinely quote the epithets literally and precisely, without euphemisms or expurgation. A Westlaw query for "nigger & date (aft 1/1/2000)" finds over 9,500 Westlaw-accessible opinions (including cases, trial court orders, and administrative decisions). And that does not include the nearly 5,000 such opinions from before the year 2000, plus whatever is present in the vast set of trial court orders that do not appear on Westlaw. A search for "nigga niggaz & date (aft 1/1/2000)" finds over 2,300 opinions. A similar search for "fag" yields over 3,000 references, though a few of those are false positives).} The precise circumstances of the utterance could not be recalled by the witnesses, but they were clear that Ruggiero's use of the word was not directed at either of them or, in fact, to any person.
Immediately after hearing Ruggiero use the word, Jeanette [one of the colleagues] told her that she would appreciate it if Ruggiero would not use that word in her presence. Ruggiero does not dispute that this happened. Whether or not Ruggiero was defiant in response or more muted is disputed, but her defiance, if any, was apparently limited to saying something along the lines of "this is how I talk." This otherwise unmemorable interaction between the three co-workers ended shortly after it had begun.
It is disputed whether Ruggiero had ever said the word in the workplace before the day in question or said it again afterward. {DeFony [the other colleague] alone says she had heard Ruggiero say it before and afterward. Ruggiero denies this.} It is, however, undisputed that at no time did either Jeanette, on the one occasion in October 2018, nor DeFony, on the supposedly multiple occasions before and after the October 2018 incident, feel targeted by any such use of the term. Neither woman ever initiated a complaint about Ruggiero's use of the word. No one maintains that Ruggiero ever directed the word towards any employee, vendor, visitor, or member of the public doing business with the County. Nowhere is it asserted that the word was used in connection with County business or, at any time, ever overheard by anyone else other than DeFony and Jeanette.
All workplace uses of the word, whether one or several, were overheard or spoken in a context that could not be recalled by either woman. The only thing the women were certain of is that they heard it spoken, at least once, and that it was not directed to anyone in particular. Neither indicated that they had any intention of complaining about the comment to anyone. In fact, Jeanette later testified that she simply just did not want to hear it said again and, according to her own testimony, she never did.
In November 2018, approximately one month after the incident, Jeanette and Ruggiero disagreed about some other issue. Anna Marie Wright, the County's Purchasing Agent, overheard the women in the hallway, called them into a conference room, and sternly advised both of them that arguing in the workplace as had just occurred needed to stop immediately and that were it to occur again, they would be written up. Neither Ruggiero nor Jeanette was allowed to speak, and Wright herself had no idea what the conflict had to do with. Apparently, the spontaneous meeting ended as quickly as it had begun and nothing else was said.
Approximately two weeks later, on November 30, 2018, on a day when Ruggiero was out of the office, Wright approached Jeanette to inquire about how she and Ruggiero were getting along since the discussion between the three of them in the conference room earlier in the month. Jeanette responded "[g]ood" but then said, "I just don't like her inappropriate use of the 'N-word.'"
Wright stated that she only heard about this incident at that moment by asking Jeanette about how the two women were getting on in the wake of the hallway conflict she had intervened in. Jeanette testified that if she had not been questioned by Wright, she did not know that she would have mentioned Ruggiero's October 2018 comment. According to Wright, Jeanette stated that the comment had been made a couple of weeks earlier and she was uncomfortable with it and that was all that she said.
That led to the investigation and the firing, which in turn led to the decisions reducing the penalty to a thirty-day suspension. The court upheld the reduction, relying chiefly on the deference that courts pay to agencies such as CSC; but it had this to say in response to the County's claim that the CSC's decision was "arbitrary, capricious or unreasonable" or "shockingly disproportionate or unfair":
The record amply supports the ALJ's findings that the word was not used as an epithet, a threat, or a derogatory statement towards a co-worker or anyone else in the workplace. The CSC found that this context "mitigated the severity of its usage." The CSC was also swayed by the fact that Ruggiero is a fifteen-year employee whose entire disciplinary history consisted of a single written reprimand from 2016 that did not involve "usage of any racially derogatory language."
The County argues that this is an impossible outcome because "the N-word" is a loathsome racial epithet, the use of which is deserving of the most severe sanction. That the "N-word" is a coarse and vile word with no redeeming social value can hardly be debated. But the word "nigger" was not the word used here. The word used here was "nigga" and, like it or not, that is a distinction that makes a difference.
While this court need not wade into the precise contours of the two terms, nor offer its opinions as to the various arguments made in popular culture and academia as to the differences between the two and who may or may not use one or the other, to ignore that a difference exists throughout large swaths of American culture would be to stick our head in the sand. In short, as the CSC found, context matters a great deal. {Rebecca Carroll, When Larry Wilmore said the N-Word to President Obama, I felt Black Pride, GUARDIAN, May 2, 2016 (Perhaps the most famous instance of context mattering as to the term used in this case occurred in the spring of 2016 at the White House Correspondents Dinner when, at the end of his remarks, comedian Larry Wilmore addressed then President of the United States Barack Obama as "my nigga." The President showed no sign of upset at the moment or later when his press secretary said that Mr. Obama "appreciated the sentiment that Mr. Wilmore expressed in his speech" and that "the personal view that Mr. Wilmore was expressing came from a genuine place.")}
In support of its argument that "the N-word" is unspeakable, the County provided us with a supplement to its appendix that included an article from the New York Times entitled "How the N-Word Became Unsayable" by John McWhorter, an associate professor of English and comparative literature at Columbia University…. In the essay provided and relied on by the County, the author uses the word "nigger" repeatedly and describes its use from its origin through today. McWhorter concludes the word is so incendiary that its use has come to be forbidden not only as a slur but even when referred to. The word "nigga," on the other hand, is not addressed in the essay at all.
Overlooked by the County is another article by Professor McWhorter, written for TIME magazine, entitled "Stop Policing the N-Word." In this article, the author addresses in some detail the differences in use and history between the words "nigger" and "nigga." McWhorter recounts how the latter word came to emerge in defiance of the former, and how its use for over 100 years has, for those who use it, often been a term of colloquial affection. The professor goes to some lengths to differentiate the two words and argues that "policing language prevents needed discourse" and further asserts that "[o]utlawing a slur is one thing. Pretending that a different word that sounds like it is the same one and insisting no one use it will never attract a consensus."
Ultimately this author, the very one whose New York Times essay is relied on by the County as a form of persuasive authority, concludes that using the first of these words is a disgrace to be condemned, but not the second. McWhorter writes, "Let's police the use of the N-word as a slur, but not a word that started from it but now means 'friend[.]'" …
We recount the anecdotes that we do and cite the writings of Professor McWhorter not to endorse or commend any of these points of view, but rather, and more importantly, to highlight that the issue presented by Ruggiero's conduct and distinct word choice, the central fact of this case, is as unsettled a matter of American ethos and principles as any. Books have been written on the topic. {Jabari Asim, The N Word: Who Can Say It, Who Shouldn't & Why (Houghton Mifflin Co. ed. 2008).} Theses have been written on the topic. {Shaquille Sinclair, You Can't Say That! A Semantic and Historical Analysis of Nigger and Nigga, (Apr. 2017) (Senior Honors Thesis, New York Univ.).} College courses have been taught on the topic. { Sean Price, Straight Talk About the N-Word, 40 Learning for Just.., Fall 2011.} Scientific journal articles have been written on the topic. Keith Allan, Contextual determinants on the meaning of the N word, 5 Springer, July 20, 2016. Seminars have been offered on the topic. { Seminar, Everybody wants to be a Nigga, but No One Wants to be a Nigger: The Mis-Education of Nigger, Truman State Univ.} Experts have been called to testify on the topic in criminal hate crime trials. Gregory S. Parks & Shayne E. Jones, Nigger: A Critical Race Realist Analysis of the N-Word Within Hate Crimes Law, 98 J. Crim. L. & Criminology (2008) (A Black hip-hop producer, Gary Jenkins, and Randall Kennedy, a Rhodes Scholar, were introduced to testify that the use of the N-word had been morphed away from being an insult and epithet among the younger generations)….
We disagree with the County's position that the CSC's decision may somehow be construed as a license to use all manner of offensive and vulgar racial and ethnic slurs in the workplace. It conveys no such message. The CSC stated plainly that the "usage of any inappropriate language in the workplace is unacceptable" and emphasized that its decision, in this case, should not be understood to imply that "the usage of racially inappropriate language would not warrant a penalty more severe than administered in this matter." The CSC was careful to explain that in reducing Ruggiero's penalty it was not minimizing the wrongness of her conduct and specifically stated that "future similar infractions may subject her to more severe penalties, up to and including removal." The CSC was guided by the idea that in determining employee discipline it "must take many factors into account," which must include "the severity and context of the misconduct and the employee's prior history."
Rather than demeaning the County's non-discrimination policy as the County argues, the CSC was unambiguous in stating that the "penalty sends a strong message indicating that if an employee uses offensive language, even if not used as an epithet and not directed at another person at the place of business, such language is not acceptable and is subject to major discipline." …
The County maintains a steadfast and singular position: zero tolerance for this term, or a form of it, requires termination. Period. In taking up that narrow position as forcefully as it has, the County has failed to explain why context should be disregarded. Other than insistence that context, in the use of this slur, does not, should not, and simply cannot, be allowed to matter, there has been nothing offered, other than vigorous disagreement, to explain why Ruggiero, who was overheard making a comment not directed at anybody in the workplace, not involving an epithet or derogatory statement, and not said in public but on a personal telephone call having nothing to do with work, deserves more severe discipline than what the CSC ordered….
There's a lot going on here, both as a matter of employment law and administrative law, but in any event I thought the case was interesting enough and worth passing along, especially since it deals with a recurring question of whether policies should distinguish the use of the words "nigga" and "nigger" (see, e.g., pp. 38-39 and 61-62 of Randy Kennedy's and my article). Naturally, I agree with the court's decision that it was quite proper to mention the words in its opinion, but I know that this too is controversial among some.
