Microaggressions: trivial slights or evidence of discriminatory animus?

Why have so many people lost jobs in the Diversity, Equity and Inclusion space in the past year? Do employers believe their exposure to claims of discrimination and harassment has lessened? Does the use of more innocuous language lead some to believe that anything short of blatantly racist behavior is acceptable, or at least legally defensible? Think of the term "microaggressions," and what that word means in the workplace.

Can perceived slights actually be evidence of discriminatory animus, or of a hostile work environment? In other words, the title of this article need not be in the disjunctive.First for definitions. "Microaggressions" is a term coined in the 1970's by Harvard University professor Chester Pierce to describe the subtle, everyday ways that Black people experience discrimination at the hands of White people. The "micro" part suggests that people's words and conduct can be so trivial that they cannot possibly be actionable, much less truly hurtful. But there is also a body of research that claims that the impact of these so-called microaggressions can be as harmful as overt forms of racism. Studies conducted by psychologist Derald Wing Sue and others have found that "microaggressions have a macro impact as they affect the standard of living of a marginalized group. ...they create a lowered sense of psychological wellbeing. They deplete psychic energy or problem-solving and work productivity." The cumulative effect of these microaggressions can take a profound toll. Dr. Sue says, "They occur to people of color from the time they awaken, until they go to bed, from the time they are born until they die."This suggests the term is misplaced, because it seems to focus on the speakers and actors instead of on those who are impacted. Others suggest "subtle acts of exclusion" as a more neutral way to describe the phenomena.

And still others, "exclusionary behavior" or "racist abuse." "Subtle Acts of Exclusion: How to Understand, Identify, and Stop Microaggressions." Drs. Tiffany Jana and Michael Baran, (2020, 2022).The people impacted by these behaviors frequently feel unsafe calling out those who hurt them. In workplaces with inadequate human resources support, conduct that is hurtful, dehumanizing or alienating may well persist uncorrected. And the toll is not just on the workers who are damaged. A loss of productivity by any employee is a loss for all. There is abundant evidence that diverse and tolerant workplaces increase productivity and profitability. That's a win-win for everyone.What about legal claims and exposure that may arise from such exclusionary behaviors? The Fair Employment and Housing Act (FEHA) outlaws discrimination based on a wide variety of protected characteristics, where it results in adverse employment actions. Gov. Code Section 12940(a). FEHA also outlaws harassment. Section 12923(a), as amended, is a powerful statement of the harms a hostile work environment can cause: "The Legislature hereby declares that harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim's emotional tranquility in the workplace, affect the victim's ability to perform the job as usual, or otherwise interfere with and undermine the victim's personal sense of well-being...."While a single incidence of exclusionary behavior may not meet the legal standard, that is not the proper lens for examination.

As the California Supreme Court holds, and Gov. Code Section 12923(b) affirms, "The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination. In that regard, the Legislature affirms the decision in Reid v. Google, Inc. (2010) 50 Cal.4th 512 in its rejection of the "stray remarks doctrine."That statutory amendment, as well as the Reid case, both came after Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 295, which famously noted that the Fair Employment and Housing Act "is not a civility code." Lyle dealt with a very specific type of workplace, where writers for the hit TV show Friends used adult-themed sexual humor and jokes. Serious free speech issues were implicated there, as the First Amendment protects entertainment just as much as news content. Zacchini v. Scripps-Howard Broadcasting Co. (1977) 433 U.S. 562, 578. In Lyle, the workplace product was the creative expression itself, so free speech rights were deemed paramount.Lyle is a 17-year old decision. Since it came down, the country has had to reckon with the Black Lives Matter and #MeToo movements. While employers may perceive diminished legal liability from microaggressions, they should continue to have robust human resources policies and training in place to avoid missteps that can lead to costly outcomes.