So what if a Burbank employee used the word “nigger” at work? Would the courts say it was too vague to fire them?


(click to enlarge)

We got this question sent in about an hour ago, and felt it was worth pulling out for special attention:

If Burbank tries to fire an employee for using the n word at work would the court turn around and reverse them, because Burbank was trying to make a state of mind determination about why they were using that word?

Our response?

Of course not– and this brings up an interesting point. If an employee used the n” word at work it would be considered an automatically culpable offense by most judges and arbitrators, because it’s such an automatically horrible word to use nowadays. And we would imagine that any justification for ever using it would fall on the accused EMPLOYEE to make– that the burden of proof would be on THEM to show that the “setting” was a legitimate-use one. Because it’s so prima facie bad.

In other words, apparently the ‘N’ word rules are different if you’re an employee vs a manager– at least for this court, for Burbank. When you’re the police chief there’s a lot of ‘iffiness’ to the question that wouldn’t exist if you were Harvey the Plumber.

Here’s what we would love to see happen:

Presuming that we had a half-way moderate state supreme court, and they took the case, we’d love to see it determined that the use of the word “nigger” in a work setting is so EGREGIOUS that no “state of mind” considerations need apply, and thus you can’t throw out an action against it because of the plaintiff’s inability to determine the user’s state of mind in regards to motive, reasons, etc.

In other words, it is ALWAYS unacceptable to use the word “nigger,” just like it is looking up your secretary’s skirts or pinching her butt. Is the boss doing those things because he’s worried about her weight?

Not any more.

The fact that this court relies upon a strict “standard” for determining the illegitimate the use of the word “nigger” only shows how insensitive they are. But what do you expect– all three justices are white Republican appointees. So of course they are going to act (sophistically?) like there might be an acceptable use of the word– and then make the EMPLOYEE prove that it was a bad one by some kind of strict-evidence method, and which no one could ever possibly do unless they had secret tape recordings that proved a bad motive.

Of course, the particular setting is a consideration, and using the ‘N’ word as a warning against it’s use might be acceptable use.

But, like we just pointed out, the burden of proof for such use should be placed upon on the USER, and not the objecting party. Unlike what this court placed on E. Rodriguez.

In fact, this kind of automatic “standard” is part and parcel for determining the nature of other potentially culpable workplace actions. Like, it’s a given that what you did was wrong per community standards, or potential harm to the employer, or whatever– and there’s a million things like that in the world of labor law.

So, why isn’t it the same for using the word “nigger” or similar such words in the workplace?

All in all, this was a NEANDERTHAL Appeals Court decision. Rest assured that this will not be settled law in 20 years. Any use of the word ‘nigger’ in the workplace will come with strict provisos–if any at all- and that the other guy does NOT have to jump through hoops to prove exist. And that the use of the word is so unqualifiedly bad that its mere utterance is culpable, absent strict and timely explanation. Which means right then and there. And even then it doesn’t get an automatic free pass without an excess of scrutiny from the courts.

But the questioner does bring up a good point– a Burbank EMPLOYEE would never get away with this in our courts of law right now, if they happened to be disciplined over it. The employer would never have to provide much evidence that the use of the word was a bad one. It’s a given.

This disparate treatment between management vs labor over the use of the word “nigger” creates a huge contradiction for our court system, and we would love to see the state high court tackle it. Right now it’s apparently automatically bad to use the word if you’re the little guy at work, but too indeterminate to figure out when you’re the boss.

About these ads

31 Comments

Filed under Uncategorized

31 responses to “So what if a Burbank employee used the word “nigger” at work? Would the courts say it was too vague to fire them?

  1. Irwin Fletcher

    But what if one or two African American employees/managers say the “N-word” and a white guy overhears it, than does anyone get disciplined?

  2. DixieFlyer

    To carry it further, if you are a $Millionaire Rap Singer you have “artistic license” to use the word if you are………..a “nigger” yourself?

    If you are walking down the street and approach someone and say
    “And how are you my nigger?” it’s OK……if you are a “nigger” also?

    It’s also OK if you are a blonde teenage girl and you are singing to a Rap Song flowing through your earphones……and “sing out the word “nigger”……because people will understand that you are merely repeating the words you memorized from the Rap Song (that they can’t hear) that’s playing in your ear being performed by the individual with “artistic license” who happens to be a $Millionaire Rap Singer.

    The Double Standards are NEVER applied in a Fair Manner or Fashion by the “powers-that-be” in Burbank.

    “But, if you’re a Lt. and suck butt you can “climb back” into the “Good Graces” of a Central Casting Interim Chief?”

    Keep MAKING them think, semi.

    P.S. None of the above applies if you are merely “sleeping” with a $Millionaire Rap Singer and not a “nigger” yourself.
    Don’t try to use the word with “artistic license” if you aren’t one!!
    Only your “original” Birth Certificate is “acceptable” for these purposes.

    • semichorus

      I’d love to see the higher courts tackle this issue of “probative value” and burden-of-proof requirements. And how “just joking” is not demeaning or inherently harassing and discriminatory.

      The rules alas are always different for the little guy. There were many parts of this decision that were just idiotic. The headlines about it should say (accurately):

      Court Rules it’s Sometimes OK for Managers to Use the N Word to Their Employees!

      All hell would break loose.

      • DixieFlyer

        “Not at Burbank Shitty Hall.”

        We’ll just pay the outside “lawyers”—-a BONUS!!!!
        (and hide the $bills from the Council & the Public)

        …..”until the runt fucking feels like it!”

  3. Anonymous

    Ask Dixie about the word, “Gook”

    • DixieFlyer

      From what I’ve been reading, golonski & Company spent $money from all of us to convince those Judges that the “flip-flop-philosophy” is ALWAYS in “play” in Beautiful Downtown Burbank!!!

      Care to ‘splain that one?????

    • semichorus

      Oh, these justices would say it’s OK if Stehr had said it. Or not necessarily discriminatory. Because after all, we can’t get inside his mind to know what he meant.

      Interesting how the rules were different for Nolan back then.

  4. Anonymous

    Could it be that the Rules for Protected Speech at the Podium might be different than those that apply to a Chief of Police addressing subordinates?

    • semichorus

      They’re supposed to be more important.

      • Anonymous

        Does anyone know if Childs and/or Elfuego Rodriguez were present when Stehr uttered this venomous word? If so, why were people at the officer rank in a meeting with the Chief of Police and his higher level staff?

      • Anonymous

        According to golonski & Company -backed by the Appellate Court-
        the Rules for “Superiors” in the work place are……impotent!!!!

        Remember he & jess-the-less even went after Floran Frank and then tried to visit their “imagined sins” onto the Rancho as a whole.

  5. chad

    Actually, I believe the CC can legally restrict speech that might be considered “hate speech” if they so desire.

    • DixieFlyer

      Sure Chad–they really slammed those Wal-Mart hater’s!!!!

      Didn’t they?

      Try a different “flavor” of your next cupcake.

  6. DaFacto

    It is ridiculous to compare the threshold to prove discrimination in a court of law with the threshold for an organization to discipline an employee for policy violations.

    The burden of proof in a discrimination law suit rests with the accuser and I think it’s clear that the trial and appellate courts determined Mr. Rodriguez did not prove sufficient facts to establish the requisite elements of his claim of discrimination.

    As for the “N” word, it has no place in a professional work environment, in the “arts,” or even in a loopy blog. Under what pretense Jim are you so vagrantly spewing this hatred and ignorance based word? What separates you from the Chief you are lambasting?

    If the Chief said the “N” word, regardless of the context, he was wrong to do so. And so are you Jim.

    • semichorus

      That’s cant. I’m quoting both Stehr and the Opinion. I know the city defenders don’t like to hear it, but too bad.

      BTW, the burden of proof in an employee disciplinary case also rests with the employer. But if challenged, they’d never be required to show that employee use of the N-word was culpable if it was a grounds for discipline, especially for fellow-employee harassment cases, or whatever. It would be a given.

      Perhaps it might be a rebuttable presumption for the employee to explain the utterance, but the moving party (the employer) would never have to prove it was bad. It would be automatically bad.

      That’s my point.

      It’s just like if a boss grabbed his secretary’s butt, and she later sued for harassment. No court would require her to prove that his action was culpable or discriminatory, or inherently harassing. No justice would say that, “Well, maybe he was just joking…” Nor would they keep it out of trial as “not probative” or “immaterial” in a sexual harassment case.

      This is the exact same thing. And some day real courts will treat it as such.

      • DaFacto

        Let’s say the Chief’s intent was to show how far the agency has progressed. To make his point, he “quoted” from an old crusty sergeant at a roll-call 30 years prior who used the “N” word. Since he was quoting something that actually happened to make a positive point of progress, by your definition (excuse), the word is appropriate.

        I happen to disagree..

        Ask yourself, would your essay carry the same intended meaning if you replaced the actual word with “the N word?” The answer is obviously yes. The question then becomes why did you use it? The answer has to be ignorance because of all the things I believe you to be, a racist is not one of them. In turn, for all the flaws the Chief had, the man is not a racist.

        • semichorus

          He probably isn’t racist, but you don’t have to be to run a discriminatory operation. As far as I know the right-wing courts haven’t set the standard this high – yet. And it shouldn’t be up to the employees to show that he is or is not one, or to establish his motive in using the word, which apparently (according to several depositions) he was not citing as a warning. They would never have to either if he had squeezed a woman’s butt in a sexual harassment case. I think this is the same thing.

          So much so that I’d be interested to see this Willhite ruling get appealed. I think his words about “joking” will doom about 70% of it. I don’t think the higher courts are going to have as loose a standard about the ‘n’ word.

          Most of these deciding justices have serious backgrounds in corporate employment law. They have a pro-employer agenda, and a career-long bias against employees and employee discrimination cases.

          It’s fascinating how Burbank always gets these kind of judges to rule in their favor, isn’t it? That’s the, “she can open doors for us, Dr. Gordon!” part of all this money being spent.

      • DixieFlyer

        Curious point Chad,
        Are you advocating Censorship of Protected First Amendment Speech from a Podium in a Public Forum?

        As for de facto, you may be making semi’s point –for him.

        Our $Money has been spent to “Protect” the speech of a Chief of Police.
        Our $Money has been used to provide “ammunition” to attack the rank-and-file when they have sought Judicial Assistance to assert their objections to the Conduct of a Superior.

        What semi has accomplished is to “focus” some of you on the issues that our Police Personnel have had to deal with—and how OUR Legal Representation has spent OUR $Money.

        Without semi ferreting out the “actual language” of the Judicial Opinions–more than once–we NEVER would have learned what positions were being staked-out in OUR names.

        Recently departed Justice Buck Compton expressed his disdain for the antics of “Public Lawyers” when they “claimed” to be representing the “Best Interests of the Public” on more than one occasion—and even singled-out Burbank for scrutiny.

        If you don’t like the use of the word, you shouldn’t want your money spent “protecting it” or rationalizing it’s use by Public Officials.

        Little-by-little, with help from semi–we’re learning about the tactics and “patterns-of-conduct & practices & procedures” employed by individuals “claiming” to represent US.

        Thanks for your time & trouble, semi.

        • DaFacto

          When you say “our money” are you using “our” as part of the collective? When was the last time you payed taxes Mike?

          Jim has done nothing more than stoke the fire of those trying to hide behind the smoke.

          • A Fan of This Blog

            Whether you are a public employee or not, you seem to be trying to pass yourself off as having passed your eighth grade exams.
            Most people purchase items that are called taxable.
            You can check your receipts to verify that you have paid yours.
            In tracking this particular blog it should have been hard to miss that this City is quite dependent upon sales tax revenue.
            As Dixie would ask, what did you wish to contribute to this blog?
            I’ve learned more from this blog than from the Leader, and that’s why I pay attention to what Semi and Dixie opine.
            After all, your blog name starts with Da.

            • ACER

              I would be willing to challenge that DeFacto has more education than you. I am quite sure he passed the eighth grade. Did you get through Pre-school? The reason why I asked this is because you take with great crediblity of what Jim and Mike Nolan say. They are so one-sided

              It is known that Mike Nolan is a free loader. So what has he contributed to society, rather than this lame biased blog?

              So keep attending the University of Semichours and continue your education with the likes of Jim and Professor Nolan. They will only tell you how to get away with things rather stick to the valid points.

              Lastly, let me school you since you have no knowledge of what DaFacto means. It is a latin word for “concerning fact.” That is something you are really lacking Mr. Fan. Stick with the facts and maybe you will learn someday.

              • A Fan of This Blog

                Obviously I made a terrible mistake.
                The Da in his name wasn’t Latin or Italian, but rather Duh.
                You quite adequately demonstrated how easily some of you can comfortably jump to conclusions.
                Our Police Department is in hot water for doing the same thing.
                De fact is that when attending Burbank Schools we learned that there was a word de facto that was used back then and before.
                The dumbing down has apparently struck.
                I’ll try to be more careful when around Burbank or on a blog.
                Your willingness to challenge my education level achieved could be cited as another example of conclusionary thinking.
                Suffice it to say that your recent activity on this blog has been neither illuminating nor helpful, to anyone else but you.

              • A Fan of This Blog

                Da question is not how educated we are.
                Your friend is owed an apology now that you have schooled us.
                It should be duh instead.
                In Burbank Schools we were taught that we should use de facto.
                The dumbing down of .Burbank has been accelerated.
                It was stated before that we can learn on this blog, but your efforts at schooling could be interpreted as helpful in recognizing the speed with which some conclusions are reached by our marginal Officers.
                The display of insight you have demonstrated is quite similar to such displays now being litigated in the Court System.
                Thanks for sharing.

            • DaFacto

              I get a pretty good education regarding taxes when I get my paycheck and when I send off my property tax. As for Mike, while he has the right to ask questions about where the money is going, you just can’t deny the irony that, other than the sales tax on a box of wine and some smokes, none of “the money” is actually his.

              • anonymous, also

                Still residing in Burbank and reading the flows of this blog.

                Wondering about the pattern each time bad news for the so called apologists for the City is in the offing, out trot the insults of individuals but obfuscating the results.

                Last night one of my neighbors, a long time LAPD, reminded me that Mike Nolan was sued by the City for $11.5 million. They lost, appealed lost, appealed again and paid out.

                Like many others in Burbank we feel he’s looking out for us and that fact alone makes City apologists uncomfortable.

                It should.

  7. chad

    I’m not really arguing any side of this argument actually. I’m just sating that I believe the CC has a legal right to regulate speech, like racial slurs, at their meetings if they so choose.

  8. chad

    Stay away from he damn icing. That’s the thing that will kill you.

Leave a Reply- (comments take a while to appear)

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s