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Will “Microaggressions” Make Their Way Into Employment Discrimination Cases? Have They Already?

Posted in Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Litigation

Over the last few months, I’ve seen an increasing number of articles start highlighting an issue that has been percolating at college campuses: The theory of “Microaggression”.

Not familiar with the term?

The New York Times has recently written about the term become the “word du jour”:

A tone-deaf inquiry into an Asian-American’s ethnic origin. Cringe-inducing praise for how articulate a black student is. An unwanted conversation about a Latino’s ability to speak English without an accent.

This is not exactly the language of traditional racism, but in an avalanche of blogs, student discourse, campus theater and academic papers, they all reflect the murky terrain of the social justice word du jour — microaggressions — used to describe the subtle ways that racial, ethnic, gender and other stereotypes can play out painfully in an increasingly diverse culture.

In reading Time magazine over the weekend, there was a similar piece which suggested that “you’re about to start hearing it everywhere.”

Microaggressions, as these academics describe them, are quiet, often unintended slights — racist or sexist — that make a person feel underestimated on the basis of their color or gender.

Of course, in reading these pieces, I couldn’t help but wonder if we’ll start to see the influence of this academic theory in employment discrimination cases.

Before you suggest that I am reach for straws, understand that academics are already looking at this theory and have been for over 25 years in articles or books (here, here and here, for example).

Take an article from February 2011 entitled “Discrimination in the 21st century: Are science and the law aligned?”.  In it the authors look for a connection between such microaggressions and discrimination:

Extending research and theory, we propose that denigrating messages toward women and ethnic minorities (i.e., microaggressions) emerge in workplace interactions and are sometimes interpreted as discrimination. Specifically, this research explores the presence, severity, and frequency of microaggressions that appear in a random sample of race and gender discrimination cases in federal court dockets since the year 2000. The results suggest that microinsults, microinvalidations, and microassaults are reported in a variety of discrimination claims. However, only overt and intentional forms of microaggressions (microassaults) increased the likelihood that decisions favored plaintiffs.

Indeed, back in 2008, I wrote about this as well an American Bar Association program on the topic at the ABA Annual Meeting that I attended. Back then, I noted that many “of the issues that arise in the workplace may first be based on perceived slights: asking certain employees to lunch; giving chummy co-workers a nickname, while ignoring others; claiming an idea that may have been offered by a co-worker.”

And yet, a quick search of Google Scholar still reveals no such reference to the theory in any published case.  This is one legal theory that has yet to find a true foothold in the courts.  With the emphasis on “yet.”

The scholarly article suggests that while the courts have not recognized microaggressions as discrimination, “employers who minimize subtle forms of discriminatory actions — microaggressions — may substantially reduce costly and time-consuming discrimination claims”.

Of course, that may be easier said than done and the authors concede that their findings are just a “first step.”

For now, employers should keep a watchful eye on this theory to see if it captures more attention and pay attention to being fair in the workplace. Whether or not you want to buy into the theory of “microaggressions” is a debate for another day, but if the theory finds a foothold in the courts, employers may not have a choice.

  • Malcolm Smith

    Of course, from a lawyer’s point of view, the great thing about microaggression is that is covers just about anything an aggrieved person dislikes, and the charge is impossible to defend.