The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One Judge's Perspective on Quoting Epithets
From Judge Jamal Whitehead (W.D. Wash.) Friday in Young v. Boeing Co. (W.D. Wash.):
According to Troglia—who identifies as "mixed race (Hispanic) and not 100% Caucasian"—Young became frustrated and called Troglia a "bitch ass nigger"1 on February 24, 2023, while the two were working together….
1 Throughout this order, the Court uses the phrase "N-word" when speaking in its own voice. But when quoting the record, the Court reproduces the actual language used. Judicial opinions that euphemize the record risk obscuring the very conduct at issue. Where, as here, the use of a racial slur is central to an employer's termination decision and the plaintiff's claims, the Court declines to place a thumb on the scale by softening the language that drives the dispute.
Of course, as Randy Kennedy and I noted in our The New Taboo: Quoting Epithets in the Classroom and Beyond, different judges exercise their discretion differently on such matters: Some judges avoid expurgation altogether (see, e.g., this decision from last week); others expurgate some slurs; others expurgate a wide range of vulgarities; and others expurgate some mentions of a slur but not others (e.g., not direct quotations from the record). In any event, this example struck me as worth noting.
