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Sticks And Stones: The Risks of Using Harmful Words

We at Solomon Taylor & Shaw love watching a good film.  If it is a legal thriller, all the better!  And we also enjoy seeing British talent being recognised at awards ceremonies.  With four British stars named in the ten nominations for Best Leading Actor or Best Leading Actress categories, the United Kingdom is well represented. 

One of those talents is Benedict Cumberbatch, nominated for his portrayal of Alan Turing in The Imitation Game.  The Harrow School alumnus is one of the most in-demand actors, with a fantastic reputation both here and in the US.  So when he used a racially insensitive word in an interview, it was immediately picked up on and made the headlines.

During an interview with US channel PBS, Cumberbatch was asked about the differences in opportunities for white actors and those from ethnic minorities.  The Sherlock actor responded: “I think as far as coloured actors go, it gets really different in the UK, and a lot of my friends have had more opportunities here [in the US] than in the UK, and that’s something that needs to change”.  

Although Cumberbatch was in fact speaking about improving opportunities for non-white actors, he immediately came under fire for using the term “coloured”, which many say is an outdated and racially insensitive term.  Cumberbatch quickly issued a formal apology and has found support from black British actor David Oyelowo.

The use of correct terminology can be very important in avoiding unintentional racism.  Employers have a duty of care to their employees to protect them from discrimination, and ensuring that staff understand what may be offensive to ethnic and religious minorities is an important part of avoiding discrimination claims.

Certain terms will be quite obviously racist to everyone.  Other terms may have once been socially acceptable but have since been deemed offensive; the term “coloured” would fall within that category, having been a generally acceptable term in the UK until the 1960s and 1970s.

Other terms cause more debate.  The use of the word “yid” is generally seen as offensive to Jews, but the word has been adopted by many fans of Tottenham Hotspur, both Jewish and non-Jewish.  They claim to have reclaimed the word as a “badge of honour”, although it is generally accepted that the use of the word in a racial context, rather than a football related “tribal” context, would still be offensive.

Under the Equality Act 2010, various types of discrimination and other potentially unlawful conduct common to the “protected characteristics” were prohibited.  This includes acts of harassment, defined as being engagement in unwanted conduct related to a relevant protected characteristic which has the purpose of effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.  The use of offensive language can therefore be considered harassment if it is unwanted conduct which has this purpose or effect.

Harassment may only apply to the relevant protected characteristics, which are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.  However, these characteristics have often been interpreted widely.  In particular, “race” may include someone’s colour, nationality, ethnic or national origin. This was considered further in a case last month regarding caste discrimination.

The case concerned a domestic worker, T.   T’s caste was the Adivasi, a heterogeneous set of ethnic and tribal groups considered the aboriginal population of India.  The worker claimed that she had been subjected to less favourable treatment by her employers as their view, tainted by caste considerations, was that she was of a lower status to them.  When the employer sought to strike out the complaint of caste discrimination, on the grounds that this did not fall within the definition of race, the tribunal refused. The Employment Appeals Tribunal, considering an appeal by the employers, held that certain factual circumstances involving caste were capable of being protected, and so caste may be (indirectly) a protected characteristic.

It is important to note that the issue of harassment may be subjective; the issue is not whether the person making a comment considers it offensive, but whether the person hearing the comment is offended by it (and that such offence is reasonable).  The use of outdated terminology generally perceived as offensive may therefore lead to harassment even if the offending party did so innocently, but not if the offended party may reasonably be considered to have been “hypersensitive”.

Employers are vicariously liable for the actions of their employees.  Employers should therefore consider in broad terms how to reduce the risk of discrimination claims, including appropriate equal opportunities training and dealing with any grievances properly in line with Acas guidelines.  A failure to protect an employee from harassment may result in a claim for compensation and potential reputational harm.   

 

This article was first published as part of our Employment Law Update - January 2015. Register above to receive our updates as soon as they are published, directly to your inbox!

This article is offered for general informational purposes only, and does not constitute legal advice. The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the views or opinions of Solomon Taylor & Shaw.