In his book, Nigger: The Strange Career of a Troublesome Word, Harvard Law Professor Randall Kennedy observes that the N-word “is and has long been the most socially consequential racial insult. . . . [but today] when African Americans are speaking to each other, “ni**er,” and especially its more genial cousin, ‘ni**a’ can be an affectionate greeting, a compliment, or a term of respect.” For example, Jay-Z and Kanye West won a Grammy for their hit song, “Ni**as in Paris.” Yet soon after, federal courts in New York and Alabama concluded that intra-racial use of the N-word is sufficient, under certain circumstances, to create a racially hostile work environment. Likewise, some black entertainers like Oprah Winfrey publicly decry the N-word as a tool of racial oppression. As Oprah explained, the N-word “carries such a sense of hatred and degradation” that to her, its use evokes images of “black men who were lynched and that’s the last word they heard.”
But if members of the black community cannot reach a consensus on proper use of the N-word, how can courts and juries be expected to determine whether its intra-racial use is sufficient to create a racially hostile work environment, and how should that determination be made? Should the race of the speaker and target of the speech be taken into account in determining the existence of a racially hostile work environment? If our legal system presumes that the N-word is per se racially offensive, regardless of the race and intent of the user, does that restore “power” to a hurtful word that an empowered new generation of black Americans has stripped of its old meaning and refashioned into a term of endearment and solidarity? These questions highlight the continuing confusion and controversy arising from the black community’s attempts to bring new and positive meaning to an old and infamous word.
Our Article explores the N-word debate and the questions to which it gives rise in the employment context. We conclude that the federal courts in New York and Alabama correctly determined that intra-racial use of the N-word can create a racially hostile work environment because that holding comports with longstanding legal recognition of intra-racial, same-sex, and third-party associative employment discrimination. Second, it is proper to apply a reasonable person standard, not a reasonable black person standard, to measure the objective severity of the harassment in cases involving intra-racial use of the N-Word in part because the shameful history of the N-Word underscores the extent to which a reasonable person of any race would likely object to the word’s use at the workplace, even where the speaker is black. Third, social science research indicates that black individuals’ implicit anti-black biases may lead to ill-intended use of the N-word against other blacks. Finally, applying the same standard to intra-racial and interracial use of the N-word, regardless of the speaker’s intent, promotes fairness, consistency, and judicial efficiency
