Amicus Curiae Brief — Robert Collier, Petitioner v. Dallas County Hospital District, dba Parkland Health & Hospital System

Supreme Court briefMar 18, 2021

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No. 20-1004

In the

Supreme Court of the United States

_______________

ROBERT COLLIER,

Petitioner,

DALLAS COUNTY HOSPITAL DISTRICT, doing business

as Parkland Health & Hospital System,

Respondent.

________________

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

________________

BRIEF OF AMICI CURIAE SOCIAL SCIENCE

EXPERTS, RACE EQUITY SCHOLARS, LAW

PROFESSORS, AND CIVIL RIGHTS ENTITIES

IN SUPPORT OF PETITIONER

________________

LISA HOLDER

LAW OFFICE OF LISA HOLDER

P.O. Box 65694

Los Angeles, CA 90065

(323) 683-6610

EJS of Counsel

EVA PATERSON

MONA TAWATAO

CHRISTINA ALVERNAZ

EQUAL JUSTICE SOCIETY

1939 Harrison St., Suite 818

Oakland, CA 94612

KELLY M. DERMODY*

DANIEL M. HUTCHINSON

EVAN J. BALLAN

MICHELLE A. LAMY

JESSICA A. MOLDOVAN

NIGAR A. SHAIKH

LIEFF CABRASER HEIMANN

& BERNSTEIN, LLP

275 Battery St.

San Francisco, CA 94111

(415) 956-1000

*Counsel of Record

(415) 288-8703

Counsel for Amici Curiae Social Science

Experts, Race Equity Scholars, Law Professors, and

Civil Rights Entities

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .............................. 1

ARGUMENT ............................................................. 6

THE N-WORD CREATES A HOSTILE

WORK ENVIRONMENT BECAUSE IT

ALTERS THE TERMS AND

CONDITIONS OF THE WORKPLACE. ....... 6

Racist Acts and Invectives Cause

Harm to Physical and Mental

Health. ................................................. 9

The N-word at Work is

Qualitatively Different than Its

Use Elsewhere Because of the

Unique Importance of the

Workplace. ......................................... 16

Severity of the N-Word at Work

Is Analogous to One Instance of

Sexual Assault. .................................. 16

The N-Word at Work Is Never a

“Mere Utterance” Because It

Can Psychologically Eviscerate

Black Workers. .................................. 18

The N-Word Pervades the

Workplace with the Disease of

Racism. .............................................. 19

The Reasonableness of an

Accuser’s Perception of the NWord Cannot Be Rejected as a

Matter of Law. ................................... 22

TABLE OF CONTENTS

(continued)

Page

II.

THE N-WORD AT WORK IS

DISCRIMINATION AKIN TO A

DEMOTION. ................................................ 24

The N-Word Is a Badge of

Slavery that Deconstructs and

Diminishes African American

Workers.............................................. 25

Use of the N-Word Effectively

Creates a Workplace Demotion. ....... 26

CONCLUSION ....................................................... 28

iii

TABLE OF AUTHORITIES

Page

Cases

Ayissi-Etoh v. Fannie Mae,

712 F.3d 572 (D.C. Cir. 2013) .................. 8, 17

Boyer-Liberto v. Fontainebleau Corp.,

786 F.3d 264 (4th Cir. 2015) .......................... 8

Castleberry v. STI Grp.,

863 F.3d 259 (3d Cir. 2017) ........................... 8

Cornwell v. Electra Cent. Credit Union,

439 F.3d 1018 (9th Cir. 2006) ...................... 24

Daniels v. Essex Group, Inc.,

937 F.2d 1264 (7th Cir. 1991) ...................... 21

Equal Emp. Opportunity Comm’n v. L.A.

Pipeline Constr. Inc.,

No. 2:08-cv-840, 2010 WL 2301292

(S.D. Ohio June 8, 2010) .............................. 15

Faragher v. City of Boca Raton,

524 U.S. 775 (1998) ........................................ 6

Ferris v. Delta Air Lines, Inc.,

277 F.3d 128 (2d Cir. 2001) ......................... 17

Firefighters Institute for Racial Equity v. City of

St. Louis,

549 F.2d 506 (8th Cir. 1977) .......................... 7

Gates v. Bd. of Educ. of the City of Chicago,

916 F.3d 631 (7th Cir. 2019) ........................ 15

TABLE OF AUTHORITIES

(continued)

Page

Harris v. Forklift Sys., Inc.,

510 U.S. 17 (1993) ...................................... 5, 6

McGinest v. GTE Serv. Corp.,

360 F.3d 1103 (9th Cir. 2004) .................... 3, 7

Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57 (1986) ...................................... 6, 7

Nuness v. Simon & Schuster, Inc.,

325 F. Supp. 3d 535 (D.N.J. 2018) .............. 14

Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75 (1998) .......................................... 5

Pace v. Southern Ry. Sys.,

701 F.2d 1383 (11th Cir. 1983) .................... 24

Perry v. Slensby,

815 Fed. App’x 608 (2d Cir. 2020) ............... 17

Phillips v. Mega Concrete Constr., LLC,

No. 20-CV-658-JDP, 2021 WL 214653

(W.D. Wis. Jan. 21, 2021) .............................. 3

Redd v. N.Y. Div. of Parole,

678 F.3d 166 (2d Cir. 2012) ......................... 17

Richardson v. N.Y. State Dep’t of Corr. Serv.,

180 F.3d 426 (2d Cir. 1999) ........................... 7

Rodgers v. W.S. Life Ins. Co.,

12 F.3d 668 (7th Cir. 1993) ............................ 7

TABLE OF AUTHORITIES

(continued)

Page

Rogers v. E.E.O.C.,

454 F.2d 234 (5th Cir. 1971) .......................... 7

Shamsuddi v. Classic Staffing Servs.,

No. CV 19-3261, 2020 WL 7700184

(E.D. Pa. Dec. 28, 2020) ................................. 4

Smelter v. S. Home Care Servs. Inc.,

904 F.3d 1276 (11th Cir. 2008) .................... 15

Spriggs v. Diamond Auto Glass,

242 F.3d 179 (4th Cir. 2001) .......................... 7

Vega v. Hempstead Union Free Sch. Dist.,

801 F.3d 72 (2d Cir. 2015) ........................... 24

Other Authorities

A. Brown, African American Enslavement,

Speech Act Theory, and the Law, 23 J.

African Am. Studies 162 (2019)................... 19

Adam M. Croom, How to Do Things With Slurs:

Studies in the Way of Derogatory Words,

33 Language & Communication 177

(2013),

https://semanticsarchive.net/Archive/TI5

NzIxN/How%20to%20do%20things%20wi

th%20slurs%20Studies%20in%20the%20

way%20of%20derogatory%20words.pdf ...... 25

TABLE OF AUTHORITIES

(continued)

Page

Andie Kramer, Recognizing Workplace

Challenges Faced By Black Women

Leaders, Forbes (Jan. 7, 2020),

https://www.forbes.com/sites/andiekramer

/2020/01/07/recognizing-workplacechallenges-faced-by-black-women-leaders/ . 21

Anna Brown, Key Findings on Americans’ Views

of Race in 2019, Pew Rsch. Ctr. (Apr. 9,

2019), https://www.pewresearch.org/facttank/2019/04/09/key-findings-onamericans-views-of-race-in-2019/ ................ 23

Ashleigh Shelby Rosette et al., Why Do Racial

Slurs Remain Prevalent in the Workplace?

Integrating Theory on Intergroup

Behavior, 24 Org. Sci. 1402 (2013) .............. 20

Black Women Disproportionately Experience

Workplace Sexual Harassment, New

NWLC Report Reveals, Nat’l Women’s

Law Ctr. (Aug. 2, 2018),

https://nwlc.org/press-releases/blackwomen-disproportionately-experienceworkplace-sexual-harassment-new-nwlcreport-reveals/ .............................................. 21

C.A. Armstead et al., Relationship of Racial

Stressors to Blood Pressure Responses and

Anger Expression in Black College

Students, 8 Health Psych. 541 (1989),

https://doi.org/10.1037/0278-6133.8.5.541 .. 10

vii

TABLE OF AUTHORITIES

(continued)

Page

Chad E. Forbes & Jordan B. Leitner, Stereotype

Threat Engenders Neutral Attentional

Bias Toward Negative Feedback to

Undermine Performance, 102 Biological

Psych. 98 (2014),

https://www.sciencedirect.com/science/arti

cle/abs/pii/S0301051114001525 ................... 14

Charles Lawrence III, If He Hollers Let Him Go:

Regulating Racist Speech on Campus,

1990 Duke L.J. 431 (1990) ......................... 3, 4

David R. Williams, Stress and the Mental Health

of Populations of Color: Advancing Our

Understanding of Race-related Stressors,

59 J. Health & Soc. Behav. 466 (2018),

https://www.ncbi.nlm.nih.gov/pmc/articles

/PMC6532404/ .................................. 11, 12, 14

Elizabeth Strouder, Why It’s So Hard to Talk

About the N-Word, TEDx (Dec. 2019),

https://www.ted.com/talks/elizabeth_stord

eur_pryor_why_it_s_so_hard_to_talk_abo

ut_the_n_word........................................ 12, 26

Federal and State Court Cooperation: Reducing

Bias, Fed. Jud. Ctr.,

https://www.fjc.gov/content/337735/reduci

ng-bias .......................................................... 24

H. McLaughlin et al., The Economic and Career

Effects of Sexual Harassment on Working

Women, 31 Gender & Society 333 (2017) .... 16

viii

TABLE OF AUTHORITIES

(continued)

Page

J.P. Harrell et al., Physiological Responses to

Racism and Discrimination: An

Assessment of the Evidence, 93 Am. J.

Pub. Health 243 (2003) .................................. 9

James W. Collins et al., Very Low Birthweight in

African American Infants: The Role of

Maternal Exposure to Interpersonal

Racial Discrimination, 94 Am. J. Pub.

Health 2132 (2004)....................................... 16

Jason Silverstein, I Don’t Feel Your Pain: A

failure of empathy perpetuates racial

disparities, Slate (June 27, 2013),

https://slate.com/technology/2013/06/racia

l-empathy-gap-people-dont-perceive-painin-other-races.html ...................................... 20

Jeff Greenberg & Tom Pyszczynski, The Effect of

an Overheard Ethnic Slur on Evaluations

of the Target: How to Spread a Social

Disease, 21 J. Experimental Social Psy. 61

(1985),

https://arizona.pure.elsevier.com/en/publi

cations/the-effect-of-an-overheard-ethnicslur-on-evaluations-of-the-targ ............. 26, 27

Jill D. Weinberg & Laura Beth Nielsen,

Examining Empathy: Discrimination,

Experience, and Judicial Decisionmaking,

85 S. Cal. L. Rev. 313 (2012) ....................... 23

TABLE OF AUTHORITIES

(continued)

Page

Joseph A. Seiner, The Trouble with Twombly: A

Proposed Pleading Standard for

Employment Discrimination Cases, 2009

U. Ill. L. Rev. 1011 (2009) ............................ 23

Kerri Lynn Stone, Decoding Civility, 28

Berkeley J. Gender L. & Just. 185 (2013)10, 11

Leora F. Eisenstadt, The N-Word at Work:

Contextualizing Language in the

Workplace, 33 Berkeley J. Emp. & Lab. L.

299 (2012) ..................................................... 13

M. Guyll et al., Discrimination and Unfair

Treatment: Relationship to

Cardiovascular Reactivity Among African

American and European American

Women, 20 Health Psych. 315 (2001),

https://doi.org/10.1037/0278-6133.20.5.315 .. 9

Mary Dunklin, High Blood Pressure

Increasingly Deadly for Black People, Am.

Heart Ass’n (July 13, 2020),

https://www.heart.org/en/news/2020/07/13

/high-blood-pressure-increasingly-deadlyfor-black-people ............................................ 10

Meagan Biwer, Implicit Bias in the Judiciary:

Confronting the Problem Through

Normalization, 7 Ind. J. L. & Soc. Equal.

264 (2019) ..................................................... 24

TABLE OF AUTHORITIES

(continued)

Page

Meeting of June 20, 2016 Rebooting Workplace

Harassment Prevention, EEOC v. A.C.

Widenhouse, Inc. (2016) (written

testimony of Contonius Gill, Charging

Party),

https://www.eeoc.gov/meetings/meetingjune-20-2016-rebooting-workplaceharassment-prevention/gill ......................... 15

Melissa L. Breger, Making the Invisible Visible:

Exploring Implicit Bias, Judicial

Diversity, and the Bench Trial, 53 U.

Rich. L. Rev. 1039 (2019) ....................... 22, 24

Michele Goodwin, Nigger and the Construction

of Citizenship, 76 Temp. L. Rev. 129

(2003) ...................................................... 3, 4, 5

Microaggression, Oxford English Dictionary......... 18

N. Torres-Mackie, How Racist Messages Harm

Physical and Mental Health, Psych.

Today (Aug. 9, 2019),

https://www.psychologytoday.com/us/blog/

underdog-psychology/201908/how-racistmessages-harm-physical-and-mentalhealth............................................................ 12

Nathan Layne, White Defendant Used Racial

Slur After Shooting Ahmaud Arbery,

Investigator Testifies, Reuters (June 4,

2020), t.ly/OTxF ............................................. 4

TABLE OF AUTHORITIES

(continued)

Page

R.T. Carter et al., A Meta-Analytic Review of

Racial Discrimination: Relationships to

Health and Culture, 11 Race & Soc.

Probs. 15 (2019).............................................. 9

R.T. Carter, Racism and Psychological and

Emotional Injury: Recognizing and

Assessing Race-Based Traumatic Stress,

35 Counseling Psych. 85 (2007) ................... 11

Rebecca Gibian, Why Words Matter: The

Neuroscience of Hate Speech, Inside Hook

(Nov. 1, 2018),

https://www.insidehook.com/daily_brief/n

ews-opinion/words-matter-neurosciencehate-speech ................................................... 19

Shari L. Kirkland, The Effect of an Overheard

Ethnic Slur on Defense Attorney

Evaluations and Verdicts in a Mock Trial

Situation 16 (1985) (M.A. thesis,

University of Arizona),

https://repository.arizona.edu/bitstream/h

andle/10150/275372/azu_td_1326239_sip1

_m.pdf?sequence=1 ................................ 27, 28

Tori DeAngelis, Unmasking “Racial Micro

Aggressions”, 40 Am. Psych. Ass’n 42

(2009),

https://www.apa.org/monitor/2009/02/micr

oaggression ................................................... 18

xii

TABLE OF AUTHORITIES

(continued)

Page

Wizdom Powell Hammond et al., Workplace

Discrimination and Depressive

Symptoms: A Study of Multi-Ethnic

Hospital Employees, 2 Race & Soc. Probs.

19 (2010) ....................................................... 11

INTEREST OF AMICI CURIAE1

Amici are social scientists, race equity

scholars, law professors, and non-governmental civil

rights entities whose research, publications, and

advocacy work reflect their expertise in and

dedication to analyzing and combating interpersonal

and institutional race discrimination. Amici have

studied extensively the effects of race and racism,

particularly the effects of race-based language and

conduct—including use of the slur “Nigger”2—in a

wide variety of applicable contexts. Amici have

collectively authored hundreds of peer-reviewed

pieces and spent many thousands of hours studying

these issues. Amici have a strong interest in

sharing

their

expertise

combat

race

Pursuant to Supreme Court Rule 37.2(a), amici

curiae certify that all parties have consented to the filing

of this brief. Counsel of record for all parties received

notice at least ten days prior to amici curiae’s deadline to

file. Pursuant to Rule 37.6, amici curiae certify that no

counsel for any party authored this brief in whole or in

part, and no counsel or party, nor any person or entity

other than amici curiae and their counsel, made a

monetary contribution intended to fund the preparation

or submission of this brief.

2 It is with the knowledge of the trauma inflicted

by this particular word that the undersigned, on behalf

of amici, most reluctantly quote the full word herein and

only for the purpose of exposing the sheer violence of the

language laid bare. The word has been capitalized every

time it is used in this brief, even if it was not capitalized

in the source material.

discrimination and abuse in the workplace. A full

list of organizational amici and additional amici,

who (except where otherwise noted) join this brief in

their

individual

capacities

and

not

representatives of any institutions with which they

are affiliated, is set forth in the Appendix to this

brief.

INTRODUCTION AND SUMMARY OF

ARGUMENT

“It is beyond question that the use of the word

‘Nigger’ is highly offensive and demeaning, evoking

a history of racial violence, brutality, and

subordination,” and when inflicted in the workplace,

is “evocative of lynchings and racial hierarchy.”

McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116

(9th Cir. 2004). This effect has been described as a

“wounding power [that] may be derived from the

physical violence and social castration that

historically has accompanied its usage.” Michele

Goodwin, Nigger and the Construction of

Citizenship, 76 Temp. L. Rev. 129, 203 (2003). In

First Amendment analysis, “Nigger” has been

characterized as “assaultive” and “a form of violence

by speech.” Charles Lawrence III, If He Hollers Let

Him Go: Regulating Racist Speech on Campus, 1990

Duke L.J. 431, 452 n.87 (1990). And “[b]ecause the

word’s history is so intimately connected with

violence and denigration, it can be inherently

threatening in a way that other epithets are not.”

Phillips v. Mega Concrete Constr., LLC, No. 20-CV658-JDP, 2021 WL 214653, at *3 (W.D. Wis. Jan. 21,

2021).3

African Americans may well—and often do—

experience the word “Nigger” as bodily violence, like

a “slap in the face” or a “knee on his neck.”

Unless otherwise indicated, all internal

alterations and quotations have been omitted and all

emphasis has been supplied.

Shamsuddi v. Classic Staffing Servs., No. CV 193261, 2020 WL 7700184, at *2 (E.D. Pa. Dec. 28,

2020) (finding that an African American plaintiff

whose supervisor called him “Nigger” in a voicemail

stated a claim for hostile work environment under

Title VII and other statutes); see also Lawrence,

supra, at 452 (“The experience of being called

‘Nigger’ is like receiving a slap in the face . . .

experienced as a blow . . . .”).

The inextricable association between the

word “Nigger” and violence persists and is

reinforced because highly publicized horrific acts of

racial violence against Black people, during or

around which the word is wielded, span decades and

continue. In 1955, the sheriff of the Mississippi

town where 14-year-old Emmett Till was brutally

slain greeted his mother, Mamie Till, with “hello

Nigger” each day of the trial of the white men who

murdered her son. Goodwin, supra, at 193. In

2020, one white man hunted down and murdered

jogger Ahmaud Arbery—and called him a “fucking

Nigger” as Arbery lay dying on the ground. Nathan

Layne, White Defendant Used Racial Slur After

Shooting Ahmaud Arbery, Investigator Testifies,

Reuters (June 4, 2020), t.ly/OTxF.

Further, the “wounding power” of the word

persists because Black people—the targets of the

word—despite “centuries of investment in America,”

continue to experience collective marginalization.

Goodwin, supra, at 193. The word “Nigger” is

synonymous with lack of citizenship, inferior status,

and degrading pejoratives, including “lazy,

oversexed, aggressive, deadly . . . and immoral.” Id.

at 189, 193. No amount of “success, intellectual

acumen, . . . demonstrated loyalty to America,” or

heroism insulates or disqualifies Black people from

infliction of the slur. Id. at 194.

This convergent historical trauma, physical

violence, and powerlessness subsumed in “Nigger”

form the social context for viewing and analyzing its

usage in the workplace, and in turn, for determining

the severity of workplace racial animus and

harassment. As this Court has “emphasized, . . .

the objective severity of harassment should be

judged from the perspective of a reasonable person

in the plaintiff’s position, considering all the

circumstances.” Oncale v. Sundowner Offshore

Servs., Inc., 523 U.S. 75, 81-82 (1998) (citing

Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).

In all harassment cases, “that inquiry requires

careful consideration of both the social context in

which particular behavior occurs and is experienced

by its target” and “[c]ommon sense.” Id.

The Fifth Circuit’s holding that, as a matter

of law, a single workplace infliction of the word

“Nigger” is not actionable under Title VII ignores

both the slur’s historical and social context and this

Court’s requirement that this context be considered.

Amici provide additional resources regarding the

assaultive and wounding nature of the slur and its

inherent propensity to land on its target as an act of

violence. Amici submit that, with this context in

mind, this Court should address the Circuit split

surrounding an “isolated” use of the word in the

workplace, and adopt as the uniform standard that

a single utterance of the word can constitute

actionable discrimination in the workplace.

ARGUMENT

THE N-WORD CREATES A HOSTILE

WORK ENVIRONMENT BECAUSE IT

ALTERS THE TERMS AND

CONDITIONS OF THE WORKPLACE.

In recognition of the uniquely important role

of the workplace in the health and dignity of

workers, Title VII prohibits employers from creating

or tolerating an environment where harassment is

“sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an

abusive working environment.” Harris, 510 U.S. at

21 (quoting Meritor Sav. Bank, FSB v. Vinson, 477

U.S. 57, 67 (1986)). To determine whether abusive

conduct is “severe or pervasive,” courts examine “the

frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating,

or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work

performance.” Harris, 510 U.S. at 23. This Court

has cautioned that frequency is not the

determinative factor; rather, even an “isolated

incident” can be sufficiently “severe” within the

meaning of Title VII if it is “extremely serious.”

Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998). Also, the “conditions” of employment extend

beyond its economic terms, such that “employees’

psychological as well as economic fringes are

statutorily entitled to protection from employer

abuse.” Firefighters Institute for Racial Equity v.

City of St. Louis, 549 F.2d 506, 514-15 (8th Cir.

1977) (quoting Rogers v. E.E.O.C., 454 F.2d 234, 238

(5th Cir. 1971)).

There is broad agreement that exposure to

racial epithets, where deemed “severe and

pervasive,” alters the terms and conditions of

employment and is actionable discrimination under

Title VII. See, e.g., Rodgers v. W.S. Life Ins. Co., 12

F.3d 668, 675 (7th Cir. 1993) (quoting Meritor Sav.

Bank, 477 U.S. at 67); Spriggs v. Diamond Auto

Glass, 242 F.3d 179, 185 (4th Cir. 2001) (same,

quoting Rodgers, 12 F.3d at 675); Richardson v. N.Y.

State Dep’t of Corr. Serv., 180 F.3d 426, 439 (2d Cir.

1999), abrogated on other grounds, Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (same,

quoting Rodgers, 12 F.3d at 675)). And the

consensus is that when the N-word is wielded in the

workplace, its toxicity is magnified. In Rodgers, the

Seventh Circuit opined that “no single act can more

quickly alter the conditions of employment and

create an abusive working environment than the

use of an unambiguously racial epithet such as

‘Nigger’ by a supervisor in the presence of his

subordinates.” 12 F.3d at 675. Likewise, in

McGinest, the Ninth Circuit concluded that use of

the N-word in reference to a Black employee and the

prevalence of racially charged graffiti at the

workplace were “significant exacerbating factors in

evaluating the severity of the racial hostility.” 360

F.3d at 1116.

In the absence of definitive guidance from

this Court, however, lower courts have split on

whether a single utterance of (or limited exposure

to) the N-word at work can be severe enough to

constitute a hostile work environment. The Third,

Fourth, and D.C. Circuits agree that it can. See

Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir.

2017) (holding that “one such instance” of the Nword “can suffice to state a claim”); Boyer-Liberto v.

Fontainebleau Corp., 786 F.3d 264, 280 (4th Cir.

2015) (en banc) (holding that “a reasonable jury

could find that . . . two uses of the ‘porch monkey’

epithet,” which the court deemed as “odious” as the

word “Nigger,” “whether viewed as a single incident

or as a pair of discrete instances of harassment—

were severe enough to engender a hostile work

environment”); Ayissi-Etoh v. Fannie Mae, 712 F.3d

572, 580 (D.C. Cir. 2013) (Kavanaugh, J.,

concurring) (“[B]eing called the [N]-word by a

supervisor . . . suffices by itself to establish a

racially hostile work environment.”). In contrast,

the Sixth, Seventh, Eighth, and Tenth Circuits—

like the Fifth Circuit here—hold that an “isolated”

use of the N-word is not serious enough to constitute

actionable discrimination under Title VII. See Pet.

at 12-16 (collecting cases).

The Third, Fourth, and D.C. Circuits’

approach accords with the social science on the

uniquely pernicious effects of the N-word at work,

and amici respectfully urge this Court to adopt this

approach.

Racist Acts and Invectives Cause

Harm to Physical and Mental

Health.

The physical, mental, and psychological

harms linked to overt racism and other forms of

racial bias are well established. Robert T. Carter et

al.,

Meta-Analytic

Review

Racial

Discrimination: Relationships to Health and

Culture, 11 Race & Soc. Probs. 15, 23 (2019) (metaanalyses of 242 studies found racial discrimination

was related to mental health effects of obsessivecompulsive behavior, stress, and hostility and anger

and physical effects of high blood pressure and

negative health).

Research analyzing a broad sample of studies

on racism’s physiological impact found that “direct

encounters with discriminatory events contribute to

negative health outcomes.” Jules P. Harrell et al.,

Physiological

Responses

Racism

and

Discrimination: An Assessment of the Evidence, 93

Am. J. Pub. Health 243, 243 (2003). One such study

examined the relationship between cardiovascular

reactivity and interpersonal mistreatment and

discrimination in middle-aged Black and white

American women. Max Guyll et al., Discrimination

and

Unfair

Treatment:

Relationship

Cardiovascular Reactivity Among African American

and European American Women, 20 Health Psych.

315

(2001),

https://doi.org/10.1037/0278-6133.

20.5.315. The Black women, who attributed

mistreatment to racial discrimination, exhibited

greater average diastolic blood pressure reactivity.

Id. These findings support the hypothesis that

racial discrimination is a chronic stressor that can

negatively impact the cardiovascular health of

African Americans.

In another study, Black college students

viewed three scenarios: racist situations involving

Black people; anger-provoking, nonracist situations;

and neutral situations. Cheryl A. Armstead et al.,

Relationship of Racial Stressors to Blood Pressure

Responses and Anger Expression in Black College

Students, 8 Health Psych. 541, 541 (1989),

https://doi.org/10.1037/0278-6133.8.5.541. Analysis

done after each viewing revealed significantly

increased blood pressure in response to racist

stimuli, but not to anger-provoking or neutral

stimuli. Id. at 552. The study concluded that

racism was associated with increased blood pressure

in Black people and posited, “[t]here may be a

heightened sensitization and vigilance for racism,”

because “[r]acism is an aversive stimulus that

threatens ‘selfhood,’ whereas mere anger does not

have such deleterious effects.” Id. at 553. High

blood pressure or hypertension correlates with

cardiovascular disease for which the mortality rate

of African Americans is twice that of their

Caucasian peers. Mary Dunklin, High Blood

Pressure Increasingly Deadly for Black People, Am.

Heart Ass’n (July 13, 2020), https://www.

heart.org/en/news/2020/07/13/high-blood-pressureincreasingly-deadly-for-black-people.

Abusive and discriminatory speech in the

workplace also harms mental health. Kerri Lynn

Stone, Decoding Civility, 28 Berkeley J. Gender L. &

Just. 185, 213-14 (2013). One study of hospital

employees found that Black employees were more

likely to report frequent discrimination correlated

with depressive symptoms “above and well beyond

that of simple job strain or general social stress.”

Id. (citing Wizdom Powell Hammond et al.,

Workplace

Discrimination

and

Depressive

Symptoms: A Study of Multi-Ethnic Hospital

Employees, 2 Race & Soc. Probs. 19 (2010)); see also

Robert T. Carter, Racism and Psychological and

Emotional Injury: Recognizing and Assessing RaceBased Traumatic Stress, 35 Counseling Psych. 85

(2007) (noting the psychological and emotional harm

from language such as “Nigger” and “Boy”).

Further, the negative mental health impacts

of racist incidents can compound racism’s

physiological harm. A study based on in-depth

interviews of African Americans concluded that

incidents of race discrimination affect mental health

“so profoundly” because “they are experiences of

exclusion that trigger feelings of a ‘defilement of

self’ . . . includ[ing] feelings of being overscrutinized,

overlooked,

underappreciated,

misunderstood, and disrespected.” David R.

Williams, Stress and the Mental Health of

Populations of Color: Advancing Our Understanding

of Race-related Stressors, 59 J. Health & Soc. Behav.

466, 469 (2018), https://www.ncbi.nlm.nih.gov/

pmc/articles/PMC6532404/. This often triggers a

state of heightened vigilance in the affected

employee, further compounding the stress response.

“Heightened vigilance” refers to a specific type of

stress, namely “living in a state of psychological

arousal in order to monitor, respond to, and attempt

to protect oneself from threats linked to potential

experiences of discrimination and other dangers in

one’s immediate environment.”

Id. at 470.

Research links this race-related heightened

vigilance to hypertension, negative cardiovascular

function, sleep difficulties, obesity, and depressive

symptoms. Id. The cascade of harms is so severe

that the American Psychological Association (APA)

has concluded: “Quite literally, racism can kill.”

Naomi Torres-Mackie, How Racist Messages Harm

Physical and Mental Health, Psych. Today (Aug. 9,

2019), www.psychologytoday.com/us/blog/underdogpsychology/201908/how-racist-messages-harmphysical-and-mental-health.

The word “Nigger” at work is particularly

deleterious and triggering of hyper-vigilance

syndrome. Historian Elizabeth Strouder-Prior

describes her encounter with the N-word at work (in

the classroom) as annihilating and immobilizing.

Why It’s So Hard to Talk About the N-Word, TEDx

(Dec. 2019), https://www.ted.com/talks/elizabeth

_stordeur_pryor_why_it_s_so_hard_to_talk_about_t

he_n_word. Strouder-Prior’s immobilization is a

bio-physical response on the spectrum of somatic

responses to the N-word consistent with hypervigilance. “[W]hen a white person uses the term

‘Nigger,’ regardless of his conscious intentions, he is

making a fundamental statement about his place in

the world and . . . the place of African Americans . . .

akin to . . . saying explicitly: ‘I reject the concept of

equality, I reject your humanity, I am more

powerful than you, and because of that power, I can

say anything I want, and you have no recourse.’”

Leora F. Eisenstadt, The N-Word at Work:

Contextualizing Language in the Workplace, 33

Berkeley J. Emp. & Lab. L. 299, 319 (2012). Social

science demonstrates that the word “typically

renders the targeted listeners speechless and

demoralized, and creates in them a feeling of

helplessness that is met with anger, fear, or

sadness.”

Id. at 319-20.

The hyper-vigilance

response leads to a constellation of dangerous

health conditions for African American employees.

See supra Section I.A.

The N-word is also uniquely harmful because

it undermines dignity and self-esteem, moral

characteristics that modern psychology embraces as

fundamental human needs.4 When used in the

workplace, the N-word can trigger a self-demotion

dynamic that manifests in the form of stereotype

threat—a phenomenon that occurs when people

placed in situations where negative stereotypes

about groups to which they belong are at risk of

being confirmed and experience apprehension,

severe anxiety, poor recall, and poor performance.

Chad E. Forbes & Jordan B. Leitner, Stereotype

Threat Engenders Neutral Attentional Bias Toward

Negative Feedback to Undermine Performance, 102

Biological

Psych.

(2014),

https://www.

Within the last hundred years, a number of

important figures in the development of modern

psychology have embraced this notion (e.g., Adler, 1930;

Allport, 1937; Homey, 1937; James, 1890; Maslow, 1970;

Murphy, 1947; Rank, 1959; Rogers, 1959; Sullivan,

1953).

sciencedirect.com/science/article/abs/pii/S030105111

4001525. Studies show that the N-word at work

triggers stereotype threat that impairs Black

workers’ performance in the workplace and other

evaluative settings. Williams, supra, 470-71.

The deleterious physical and psychological

impacts on Plaintiff-Appellant Brian Collier and

other Black people targeted by the word “Nigger” at

work track these research findings:

•

Mr. Collier testified that the word

“Nigger” carved into the elevator he took

every day at work and other “very upsetting”

incidents never “went away or out of [his]

mind,” ROA 241, 251, 256, indicating his

daily anxiety and hypervigilance.

•

Tyshanna Nuness testified that she

“couldn’t go to sleep” after being called a

“Nigglet,” “like a Pig Nigger,” by her coworker. Nuness v. Simon & Schuster, Inc.,

325 F. Supp. 3d 535, 541 (D.N.J. 2018).

•

Contonius Gill testified of being called

“Coon” and hearing “Nigger” and other racial

slurs at his job as a tanker/truck driver: “This

treatment at work left me depressed. I felt

isolated, demeaned and dehumanized. I

began having difficulty sleeping and I was

filled with anxiety.” Meeting of June 20, 2016

Rebooting Workplace Harassment Prevention,

EEOC v. A.C. Widenhouse, Inc. (2016)

(written testimony of Contonius Gill,

Charging

Party),

https://www.eeoc.gov/

meetings/meeting-june-20-2016-rebootingworkplace-harassment-prevention/gill.

•

Fred Gates, a school building engineer,

took one month of sick leave for psychological

distress,

including

violence-provoked

thoughts about his supervisor and other

higher-ups, after his supervisor racially

harassed him and called him “Nigger” twice.

Gates v. Bd. of Educ. of the City of Chicago,

916 F.3d 631, 634 (7th Cir. 2019).

•

Brenda Smelter, a homecare worker,

testified that enduring racist remarks

culminating in being assailed with “Dumb

Black Nigger” by her co-worker was “stressful

and hurtful.” Smelter v. S. Home Care Servs.

Inc., 904 F.3d 1276, 1285 (11th Cir. 2008).

•

Edward Blackwell was one among a

group of Black construction workers who

testified that they felt “fear,” “stress,” “hurt,”

“saddened,” upset,” and “humiliation” when

co-workers used the slur “Nigger,” hung

nooses and displayed the confederate flag on

the worksite.

Equal Emp. Opportunity

Comm’n v. L.A. Pipeline Constr. Inc., No.

2:08-cv-840, 2010 WL 2301292, at *2–5 (S.D.

Ohio June 8, 2010).

These accounts accord with the substantial

social science showing that the word “Nigger,” when

inflicted in the workplace, has great power to cause

physical, moral, and psychological injury.

The N-word at Work Is

Qualitatively Different than Its

Use Elsewhere Because of the

Unique Importance of the

Workplace.

Because many Americans spend as much as

one-third—or more—of their adult lives in the

workplace and rely on their jobs for financial

security and economic mobility, their workplace

experiences can have an especially profound impact

on their lives. Heather McLaughlin et al., The

Economic and Career Effects of Sexual Harassment

on Working Women, 31 Gender & Society 333

(2017). Research shows that the N-word’s toxicity is

amplified in the workplace due to the sheer amount

of time employees spend there each day. See, e.g.,

James W. Collins et al., Very Low Birthweight in

African American Infants: The Role of Maternal

Exposure to Interpersonal Racial Discrimination, 94

Am. J. Pub. Health 2132, 2135 (2004) (studying the

mental and physical health effects of racism and

finding

that

“lifetime

exposure

racial

discrimination” was “strongest” in the “place of

employment”).

Severity of the N-Word at Work Is

Analogous to One Instance of

Sexual Assault.

In Title VII harassment cases, severity

matters. Courts routinely contemplate a spectrum

of indignity to assess severity. In workplace sexual

harassment cases, courts have differentiated

between conduct that is less severe—of which a

single instance generally cannot give rise to

liability—and more severe acts that, even in

isolation, can alter the terms of the workplace and

create a triable Title VII issue. See, e.g., Redd v.

N.Y. Div. of Parole, 678 F.3d 166, 175-76 (2d Cir.

2012) (recognizing that while isolated incidents

“usually will not suffice to establish a hostile work

environment . . . even a single episode of

harassment can establish a hostile work

environment if the incident is sufficiently ‘severe’”

(collecting cases)). Courts routinely find that a

single instance of sexual assault constitutes a

“severe” act while a single touch to the shoulder or

hair may not. See, e.g., Perry v. Slensby, 815 Fed.

App’x 608, 610-11 (2d Cir. 2020) (single instance of

shoulder touching and sexually inappropriate

remarks not sufficiently severe); Ferris v. Delta Air

Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001)

(explaining that a single instance can suffice when

it is “sufficiently egregious” and finding episode of

sexual assault sufficient).

Similarly, in the context of racial harassment,

courts have recognized a spectrum of severity

pegged to the offensiveness of the racial slur that is

informed by the slur’s historical weight. Like a

single physical assault, a single encounter with the

word “Nigger” at work may be “severe,” while other

slurs that do not convey the same historical burdens

and weight of meaning may not be. See, e.g., AyissiEtoh, 712 F.3d at 580 (Kavanaugh, J., concurring)

(analogizing a single use of the N-word to “a single

physical act—such as a physical assault—[which]

can create a hostile work environment”). Simply

put: the N-word in the workplace bears no

resemblance to an “incidental” comment or contact

that would be insufficient to establish liability in a

sex harassment case. It is of a kind with an assault

that singularly and immediately, alters the terms of

the workplace.

The N-Word at Work Is Never a

“Mere Utterance” Because It Can

Psychologically Eviscerate Black

Workers.

The N-word cannot be dismissed as a

workplace “microagression” or “mere utterance,”

divorced from its violent racial history of rape,

torture, and lynching.5 Nor can the N-word be

downplayed as a “stray remark,” because it wields

enough power to cause a domino effect of

psychological harm to the target’s mental and

physical health. The N-word at work transcends

microaggression or mere utterance because it lands

with violence on the body, mind, and soul and

annihilates the wellbeing of the victim.

5 A “microaggression”—a term coined in the 1970s

by psychiatrist Chester M. Pierce—refers to a subtle or

unintentional instance of discrimination against a

member of a marginalized group.

Microaggression,

Oxford English Dictionary; see also Tori DeAngelis,

Unmasking “Racial Micro Aggressions”, 40 Am. Psych.

Ass’n

(2009),

https://www.apa.org/monitor/2009/02/microaggression.

Linguistic scientists have even concluded

that the N-word at work has the power to impose

the mental condition of being enslaved upon Black

workers. The N-word strips the target of status,

control, authority, power, and agency to a degree

that the target does not simply work for or with

others but, instead, is subordinate to non-Black

coworkers. Alexander Brown, African American

Enslavement, Speech Act Theory, and the Law, 23 J.

African Am. Studies 162 (2019).

The N-Word Pervades the

Workplace with the Disease of

Racism.

A singular use of the N-word at work is

pervasive; like a contagion, it embeds and replicates

the pathogenic racial subjugation-domination

dynamic in the workplace culture. See Rebecca

Gibian, Why Words Matter: The Neuroscience of

Hate Speech, Inside Hook (Nov. 1, 2018),

https://www.insidehook.com/daily_brief/newsopinion/words-matter-neuroscience-hate-speech

(repeated exposure to hate speech can increase

prejudice and desensitize individuals to verbal

aggression).

Aside from the acute psychic and physical

harm the N-word can have on its target, its

collateral consequences are ongoing and pervasive:

Racially discriminatory conduct, particularly when

it goes unabated, can poison the work environment,

validate and encourage additional hateful conduct,

and create a chain reaction effect throughout the

workplace. Racial slurs, particularly in an office

environment, are a means of enforcing and

maintaining social hierarchy. “[A] key antecedent

for those who use racial slurs is the desire for their

dominant social group . . . to retain a dominant

social position relative to members of subordinate

groups.” Ashleigh Shelby Rosette et al., Why Do

Racial Slurs Remain Prevalent in the Workplace?

Integrating Theory on Intergroup Behavior, 24 Org.

Sci. 1402, 1403 (2013). “Racial slurs are used to

reinforce divides between racial groups.” Id. at

1405. Indeed, members of the socially dominant

group tend to remain silent when they observe the

use of racial slurs by other members of the same

group against a target in a subordinate group. Id.

Moreover, when accepted in the workplace as

shoptalk or “mere utterance,” the N-word

desensitizes bystanders, increasing the racial

empathy gap that underwrites myriad terrible social

outcomes for Black people. Americans are socialized

to feel less empathy for Black people due to

conditioning by hegemonic stereotypes.

Jason

Silverstein, I Don’t Feel Your Pain: A failure of

empathy perpetuates racial disparities, Slate (June

27,

2013),

https://slate.com/technology/2013/06/

racial-empathy-gap-people-dont-perceive-pain-inother-races.html.

Based

experimentation,

neuroscientists conclude that exposure to hate

speech increases prejudice through desensitization,

and that dehumanizing the target may reduce

empathy. Id.

The use of the N-word in the workplace thus

has the institutional effect of replicating race-based

social hierarchies, and at the interpersonal level, it

may empower office colleagues to engage in similar

(or even escalated) harassing conduct. Ultimately, a

single, isolated incident can be infectious, increasing

the likelihood of subsequent racial slurs and other

forms of discrimination. The Seventh Circuit in

Daniels v. Essex Group, Inc., 937 F.2d 1264 (7th Cir.

1991), described this very phenomenon. There, the

unaddressed “racial taunts” (“Nigger jokes”) against

a Black employee by coworkers escalated over time

to violent threats and a facsimile lynching of a black

dummy marking “the outbreak of a more injurious

strain of the virus of racism that had already

infected the workplace.” Id. at 1266, 1274-75.

African Americans are vulnerable to unique

forms of workplace hostility and systemic industrial

inequality. For example, Black women are more

likely than white women to suffer workplace sexual

harassment. Black Women Disproportionately

Experience Workplace Sexual Harassment, New

NWLC Report Reveals, Nat’l Women’s Law Ctr.

(Aug. 2, 2018), https://nwlc.org/press-releases/blackwomen-disproportionately-experience-workplacesexual-harassment-new-nwlc-report-reveals/.

Further, they are likely to be treated unfairly in

promotions and training and discriminated against

in advancement opportunities. Andie Kramer,

Recognizing Workplace Challenges Faced by Black

Women

Leaders,

Forbes

(Jan.

2020),

https://www.forbes.com/sites/andiekramer/

2020/01/07/recognizing-workplace-challenges-facedby-black-women-leaders/.

Recognizing that African American workers

suffer unique, outsized racialized harms is

consistent with Title VII’s recognition of the

importance of subjective experience in assessing

harassment violations.

The Reasonableness of an

Accuser’s Perception of the NWord Cannot Be Rejected as a

Matter of Law.

Reasonableness in the context of Title VII Nword-based harassment must be assessed at trial

because the weight and severity of the victim’s

encounter with the word is a complex, situational,

fact-intensive experience appropriate for a factfinder analysis, guided by experts. Melissa L.

Breger, Making the Invisible Visible: Exploring

Implicit Bias, Judicial Diversity, and the Bench

Trial, 53 U. Rich. L. Rev. 1039 (2019). Nuanced

matters of how racism affects individual plaintiffs,

including whether their work environment was both

subjectively and objectively hostile, may often be

issues better decided by juries than by judges. The

word “Nigger” carries the weight of a history

inextricably bound with violence, and its

weaponization in the workplace carries a spectrum

of traumatic responses for which the quantum of

harm necessarily requires an assessment by a factfinder.

Moreover, a collective decision-making body is

more likely to overcome racialized blind spots that

inhibit a nuanced appreciation for the unique

pathology of the N-word. Understandably, the full

impact and power of the word may be inaccessible to

non-Black audiences; there is no analogy that

accurately captures the hatred baked into its

etymology. But to some degree, non-Black people

intuitively “get it”: A 2019 Pew Research Institute

study showed that seventy-two percent of white

respondents believe that white people should be

prohibited from uttering the N-word. Anna Brown,

Key Findings on Americans’ Views of Race in 2019,

Pew

Rsch.

Ctr.

(Apr.

2019),

https://www.pewresearch.org/fact-tank/2019/04/09/

key-findings-on-americans-views-of-race-in-2019/.

So while these blind spots are unavoidable in a

racially complex society, given that harassment is a

subjective standard, a jury is best equipped to

adjudicate the impact of the word on an employee.6

6 Trends in judicial decision-making support this

view. Full or partial summary judgment is issued in

favor of the employer in employment discrimination

cases over eighty percent of the time. Joseph A. Seiner,

The Trouble with Twombly: A Proposed Pleading

Standard for Employment Discrimination Cases, 2009 U.

Ill. L. Rev. 1011, 1015 (2009). “[W]hite judges” grant

summary judgment sixty-one percent of the time, while

“minority judges” grant these motions at a rate of just

thirty-eight percent. Jill D. Weinberg & Laura Beth

Nielsen,

Examining

Empathy:

Discrimination,

Experience, and Judicial Decisionmaking, 85 S. Cal. L.

Rev. 313, 338-39 (2012). This stark disparity shows how

reasonable minds might differ on these matters, how

racial identity or prior experiences of racism may

implicitly or explicitly affect those assessments, and

therefore why it is imperative for a jury of one’s peers to

decide them, rather than an individual judge. Further,

recent studies show disparities in jurists’ decisions based

II.

THE N-WORD AT WORK IS

DISCRIMINATION AKIN TO A

DEMOTION.

A demotion on the basis of race is presumed

Title VII discrimination.

See, e.g., Cornwell v.

Electra Cent. Credit Union, 439 F.3d 1018, 1031 (9th

Cir. 2006) (employee established prima facie

discrimination claim through evidence that

employer demoted employee because of his race);

Pace v. Southern Ry. Sys., 701 F.2d 1383, 1386 (11th

Cir. 1983) (prima facie discrimination case requires

proof of “adverse employment action . . . , e.g.

discharge, demotion, failure to hire”); Vega v.

Hempstead Union Free Sch. Dist., 801 F.3d 72, 85

(2d Cir. 2015) (“[A]n employer discriminates against

a plaintiff by taking an adverse employment action

against him,” which can include “a demotion

evidenced by a decrease in wage or salary, a less

distinguished title, a material loss of benefits, . . . or

other indices unique to a particular situation.”).

Given its violent historical context and the

associated trauma to recipients, exposure to the Nsolely on the defendant’s race. Breger, supra, at 1053;

see also Meagan Biwer, Implicit Bias in the Judiciary:

Confronting the Problem Through Normalization, 7 Ind.

J. L. & Soc. Equal. 264 (2019). In fact, in recognition of

this subjectivity, federal courts across the nation have

implemented implicit bias trainings. See, e.g., Federal

and State Court Cooperation: Reducing Bias, Fed. Jud.

Ctr.,

https://www.fjc.gov/content/337735/reducing-bias

(last visited Mar. 17, 2021).

word in the workplace is akin to a demotion and can

constitute an adverse employment action.

The N-Word Is a Badge of Slavery

that Deconstructs and Diminishes

African American Workers.

The slur “Nigger” is especially poignant at

work because it denies the humanity of Black

people—let alone Black excellence, intelligence, and

competence. African Americans subjected to the

slur have been stereotyped as “emotionally shallow,

simple-minded, sexually licentious, and prone to

laziness.” Adam M. Croom, How to Do Things With

Slurs: Studies in the Way of Derogatory Words, 33

Language & Communication 177, 189 (2013),

https://semanticsarchive.net/Archive/TI5NzIxN/How

%20to%20do%20things%20with%20slurs%20Studie

s%20in%20the%20way%20of%20derogatory%20wor

ds.pdf. One scholar charts the properties that the

word seeks to convey; a “Nigger” is: 1) African

American; 2) prone to laziness; 3) subservient; 4) the

recipient of poor treatment; 5) athletic and musical;

6) sexually liberal or licentious; 7) simple-minded;

8) a survivor, tough, impervious to pain, or prone to

violence; 9) loud and excessively noisy. Id. at 199.

Nearly all of these assigned properties of the Nword inform the construction of African Americans

as workers or professionals, inherently shaping

perceptions of Black employees, and reducing one’s

perceived merit, collegiality, work product, output,

behavior, and worth. Id. Historian Strouder-Prior

asserts that the N-word is an idea disguised as a

word that conveys that African Americans are

intellectually and biologically inferior. She

concludes that just uttering the word irreparably

poisons the workplace. Strouder-Prior, supra, TEDx

presentation.

Use of the N-Word Effectively

Creates a Workplace Demotion.

When the N-word is used at work, it not only

causes severe psychic trauma, but also primes

employment decision makers towards anti-Black

animus. This further diminishes opportunities for

economic

and

career

advancement,

and

constructively demotes Black workers.

Social

psychologists

Greenberg

and

Pyszczynski conducted a series of experiments that

quantified the N-word’s devaluation of Black

employees among colleagues and peers.

One

experiment assessed the effect of hearing the word

“Nigger” on those rendering evaluations of a

targeted minority group member. Jeff Greenberg &

Tom Pyszczynski, The Effect of an Overheard Ethnic

Slur on Evaluations of the Target: How to Spread a

Social Disease, 21 J. Experimental Social Psy. 61

(1985),

https://arizona.pure.elsevier.com/en/

publications/the-effect-of-an-overheard-ethnic-sluron-evaluations-of-the-targ. The experiment was set

up as follows: There were groups of six to eight

participants, two or four of whom were white

subjects, and four of whom were study team

members embedded in the experiment to help

conduct it. Participants were told they were there

to evaluate debating skills. Two of the study team

members, one of whom was Black, were always

picked to engage in the debate that the others were

to evaluate. The Black debater either won or lost

the debate. After the debate, one of the embedded

non-debater study team members criticized the

Black debater in a manner that either did or did not

involve the slur “Nigger.” Id. at 61, 65-67. The

study revealed that when the Black debater lost the

debate, the ethnic slur also led to substantially lower

evaluations of his skill. Id. at 69-70.

Neuroscientific studies show that this peer

devaluation effect also extends to evaluations of

persons associated with the target of the racial slur.

For example, in one study, participants, including

an embedded non-participant posing as one, read a

trial transcript and were asked for verdicts and

attorney and defendant evaluations. Shari L.

Kirkland, The Effect of an Overheard Ethnic Slur on

Defense Attorney Evaluations and Verdicts in a

Mock Trial Situation 16 (1985) (M.A. thesis,

University

Arizona),

https://repository.

arizona.edu/bitstream/handle/10150/275372/

azu_td_1326239_sip1_m.pdf?sequence=1.

The

participants were informed that the defendant was

white, and that the defense attorney was either

Black or white. Id. at 16-17. When the defense

attorney was Black, the embedded participant

either made no comment, a non-racial derogatory

comment, or a derogatory comment that referred to

the defense attorney as “Nigger.” Id. at 19. The use

of the slur “Nigger” led to devaluation of the defense

attorney, thus replicating the effect found by

Greenberg and Pyszczynski in a different setting.

Id. at 30. In addition, participants offered especially

negative evaluations and harsh verdicts for the

white defendant when they were told he was

defended by the Black lawyer who was the target of

the N-word. Id.

These studies empirically demonstrate the

devaluation of performance and output caused by

use of the N-word. In the workplace, its use reduces

Black workers’ economic and social mobility. Its

presence constructively demotes Black workers and,

thereby, fundamentally changes the terms and

conditions of employment. Even a single display is

so violent and so limiting of opportunities that it

must be assessed by a fact finder on the merits as a

potential violation of Title VII.

CONCLUSION

For these reasons, together with the reasons

in the Petition, amici curiae respectfully ask this

Court to grant certiorari and reverse.

March 18, 2021

RESPECTFULLY SUBMITTED,

LISA HOLDER

LAW OFFICE OF LISA HOLDER

P.O. Box 65694

Los Angeles, CA 90065

(323) 683-6610

EJS of Counsel

EVA PATERSON

MONA TAWATAO

CHRISTINA ALVERNAZ

EQUAL JUSTICE SOCIETY

1939 Harrison St., Suite 818

Oakland, CA 94612

(415) 288-8703

KELLY M. DERMODY*

DANIEL M. HUTCHINSON

EVAN J. BALLAN

MICHELLE A. LAMY

JESSICA A. MOLDOVAN

NIGAR A. SHAIKH

LIEFF CABRASER HEIMANN

& BERNSTEIN, LLP

275 Battery St.

San Francisco, CA 94111

(415) 956-1000

*Counsel of Record

Counsel for Amici Curiae Social

Science Experts, Race Equity

Scholars, Law Professors, and

Civil Rights Entities

APPENDIX

A-1

INSTITUTIONAL AMICI

The Aoki Center for Critical Race and Nation

Studies at UC Davis School of Law (Martin Luther

King, Jr. Hall) fosters multi-disciplinary scholarship

and practice that critically examines the law

through the lens of race, ethnicity, indigeneity,

citizenship, and class. By integrating legal

scholarship with the research of academics in other

disciplines and by connecting critical race theory to

the world of practice and policy, the Aoki Center

seeks to deepen our understanding of issues of race

discrimination that have a significant impact on our

culture and society.

The Center on Race, Law, and Justice at the

Fordham Law School, founded in 2016, works to

generate innovative responses to racial inequality

and discrimination. It prioritizes law, data, and

social science-informed interventions capable of

creating concrete change in communities,

institutions, and public policy in a number of areas

in the domestic and global contexts. The Center

maximizes real-world impact through crossdisciplinary collaborations, comparative analyses,

and systemic interventions that push the

boundaries of traditional approaches to race and

inequality.

The Center on Race, Inequality, and the Law

at New York University School of Law was

created to confront the laws, policies, and practices

that lead to the oppression and marginalization of

people of color. Accordingly, the Center uses public

A-2

education, research, advocacy, and litigation to

advance racial justice and dismantle structures and

institutions that have been infected by racial bias

and plagued by inequality. The Center further

supports the vigorous enforcement of laws that

protect individuals against attitudes, beliefs, and

behaviors that evince racial animus and injure

human dignity.

The Charles Hamilton Houston Institute for

Race and Justice at Harvard Law School was

launched in September 2005 by Charles J. Ogletree,

Jr., Jesse Climenko Professor of Law. The Institute

honors and continues the unfinished work of

Charles Hamilton Houston, who engineered the

multi-year legal strategy that led to the unanimous

1954 Supreme Court decision Brown v. Board of

Education, repudiating the doctrine of “separate but

equal” schools for Black and white children. Our

long-term goal is to ensure that every member of our

society enjoys equal access to the opportunities,

responsibilities, and privileges of membership in the

United States. This must include ensuring freedom

from discrimination and appropriate redress when

entities create or ignore work environments that

foster or tolerate disparagement on the basis of race.

The Civil Rights Project at UCLA (CRP) at the

University of California Los Angeles (UCLA) was

founded in 1996 (originally at Harvard University)

to create a new generation of research in social

science and the law on civil rights and equal

opportunity for racial and ethnic groups in the

United States. CRP has commissioned over 400

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studies, published more than 25 books and issued

numerous reports from authors at universities and

research centers across the country. Its research

was cited in Grutter v. Bollinger, 539 U.S. 306

(2003) and Parents Involved in Community

Schools v. Seattle School District No. 1, 551 U.S. 701

(2007) (Breyer, J. dissenting).

The Fred T. Korematsu Center for Law and

Equality is a non-profit organization based at the

Seattle University School of Law. It works to

advance justice through research, advocacy, and

education. Inspired by the legacy of Fred

Korematsu—who defied military orders during

World War II that resulted in the unlawful

incarceration of 120,000 Japanese Americans—the

Korematsu Center works to advance social justice

for all. It has a special interest in ensuring that

minorities are able to participate fully in this

nation’s civic and economic life

The W. Haywood Burns Institute (BI) is a

Black-led national, non-profit working to transform

the administration of justice. The Burns Institute

works to dismantle structural racism and build

community-centered structural well-being. BI has

worked in hundreds of jurisdictions nationally in

support of local efforts to eliminate racial and ethnic

disparities.

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INDIVIDUAL AMICI

Catherine Simpson Bueker is a tenured

Professor of Sociology at Emmanuel College in

Boston, Massachusetts. She focuses on issues of

race, ethnicity, and immigration and has published

books, chapters, essays, and peer-reviewed articles

on those topics. Her research has been read and

cited hundreds of times, including in the National

Academies of Sciences report, The Integration of

Immigrants into American Society (2015). Her

books include From Immigrant to Naturalized

Citizen (LFB Press 2006) and The Experiences of

Women of Color in an Elite US Public School

(Palgrave MacMillan 2017). Her articles have

appeared in the journals The International

Migration Review; Race, Ethnicity, and Education;

The Journal of International Migration and

Integration; and Contexts, among others. She has

also been a Visiting Scholar and Visiting Associate

Professor at Harvard University. She holds a BA in

American Studies from Cornell University and an

MA and PhD in Sociology from Brown University.

Bennett Capers is a Professor of Law at Fordham

Law School, where he is also the Director of the

Center on Race, Law, and Justice. His research

focuses on issues of race, gender, technology, and

criminal justice, and he is a prolific writer on these

topics. His articles and essays have been published

or are forthcoming in the California Law Review

(twice), Columbia Law Review, Cornell Law Review,

Fordham Law Review, Minnesota Law Review, New

York University Law Review, Michigan Law Review,

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and UCLA Law Review, among others. In addition

to co-editing the forthcoming Critical Race

Judgments: Rewritten U.S. Court Opinions on Race

and Law (Cambridge University Press) and

Feminist Judgments: Rewritten Criminal Law

Opinions (Cambridge University Press), he also has

a forthcoming book about prosecutors, The

Prosecutor’s Turn (Metropolitan Books). He is an

elected member of the American Law Institute, and

a Director of Research for the Uniform Laws

Commission. He has also served for several years

as a Commissioner on the NYC Civilian Complaint

Review Board.

Dr. Robert Carter, PhD. is Professor Emeritus of

Psychology and Education at Columbia University.

He is an expert on the stressful and traumatic

effects of racism. He has authored 128 articles and

9 books, including Carter and Scheuermann,

Confronting Racism, (Routledge 2020); and Carter

and Pieterse, Measuring the Effects of Racism

(Columbia University Press 2020). He is a fellow in

the American Psychological Association and has

earned several national awards.

Robert S. Chang is a Professor of Law and the

Executive Director of the Fred T. Korematsu Center

for Law and Equality at Seattle University School of

Law.

Marjorie Florestal is a law professor with over a

decade of experience in creating diverse and

inclusive learning environments for students from

all over the world. As a scholar, she has written on

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issues of race, class, gender, immigration, and crosscultural pedagogy. As a faculty leader, she has

assessed campus climate and worked with students

and institutions on diversity initiatives. Prior to

academia, Professor Florestal served as a lawyer in

the Clinton White House. She has lived, traveled,

and worked in multiple countries, including Haiti,

South Africa, Cape Verde, South Korea, Guatemala,

and Hong Kong. Professor Florestal holds a JD

from New York University School of Law. She also

holds a Masters degree in Jungian psychology and is

completing doctoral work in human development

focusing on issues of racial trauma and healing.

Dr. Nicole Arlette Hirsch is a visiting scholar at

UC Berkeley. Dr. Hirsch received her PhD in

sociology from Harvard University and held a

postdoctoral research fellowship at USC. She has

expertise in the areas of racial justice,

organizations, culture, and social change. Her work

considers how individuals, groups, and

organizations confront stigmatization,

discrimination, and racism and build power through

civic engagement in the United States and in

Europe.

Christopher Hom is Associate Professor of

Philosophy at Texas Tech University. He received

his PhD in Philosophy from University of California,

Irvine and has been a faculty fellow at University of

California, Santa Cruz and at the Stanford

Humanities Center. He works primarily in

philosophy of language, philosophy of race, and

metaethics. His most well-known publications

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include “The Semantics of Racial Epithets” in The

Journal of Philosophy, “A Puzzle about Pejoratives”

in Philosophical Studies, and “Why the Negation

Problem is Not a Problem for Expressivism” (with

Jeremy Schwartz) in Noûs. He is currently working

on a book on ideological language.

Jason Okonofua is an Assistant Professor in the

Psychology Department at the University of

California- Berkeley. As a social psychologist, his

research emphasizes the ongoing interplay between

processes that originate among teachers and

students to examine causes for disproportionate

discipline according to race. His research has been

published in Psychological Science and the

Proceedings of the National Academy of Sciences.

Dr. Alex Pieterse is the Associate Professor and

Doctoral Training Director, Counseling Psychology

at the University of Albany. Dr. Pieterse conducts

research on health-related outcomes associated with

the experience of racism, antiracism advocacy, racerelated aspects of counseling psychology training,

and the impact of self-awareness on the

psychotherapy process. He is an associate editor for

The Counseling Psychologist and co-author of

Measuring the Effects of Racism: Guidelines for the

Assessment and Treatment of Race-Based Traumatic

Stress Injury, published by Columbia University

press.

Dr. Jennifer Richeson is the Philip R. Allen

Professor of Psychology at Yale University. Dr.

Richeson’s research examines multiple psychological

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phenomena related to cultural diversity and how

people reason about and respond to societal

inequality and injustice, including the consequences

of managing the threats associated with being the

target of discrimination.

Suja A. Thomas is the Peer and Sarah Pedersen

Professor of Law at the University of Illinois College

of Law. Professor Thomas’s book The Missing

American Jury: Restoring the Fundamental

Constitutional Role of the Criminal, Civil, and

Grand Juries was published by Cambridge

University Press. The book has been reviewed by

federal judge William Young who asserted it is “akin

to Tom Paine’s Common Sense.” Professor Thomas’s

second book Unequal: How America’s Courts

Undermine Discrimination Law, published by

Oxford University Press, was discussed in the New

York Times Magazine and reviewed by federal judge

John McConnell. She has served as a Visiting

Professor at the University of Chicago Law School

and Vanderbilt Law School. Professor Thomas

received her B.A. in mathematics from

Northwestern University and her J.D. from NYU

School of Law where she graduated with honors and

was on the Law Review. After clerking, she

practiced in New York City at the law firms of

Cravath, Weil, Gotshal, and Vladeck.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.