Courtesy of Kickstand/iStockphoto.com Courtesy of Kickstand/iStockphoto.com

A New Jersey medical clinic has been hit with a federal civil rights suit after a sonogram technician allegedly called an African-American patient’s unborn child a “monkey.”

When the patient objected to the use of that term, the technician denied doing anything wrong and the clinic owner defended the term as a “silly colloquialism,” according to the plaintiff. The complaint cites a series of instances when using the term “monkey” toward a black person was deemed racist, including the recent cancellation of Roseanne Barr’s ABC television show after she posted an offensive tweet about Valerie Jarrett, a former aide to President Barack Obama.

The suit says the clinic where plaintiff Nicole Duncan of Newark, New Jersey, went for her diagnostic test is a public accommodation under Title II of the Civil Rights Act of 1964 and brings counts for discrimination under 42 U.S.C. §2000 and the New Jersey Law Against Discrimination, intentional and negligent infliction of emotional distress and punitive damages.

Duncan said the ultrasound technician, who is white, called her baby a “monkey” while the test was underway. Hearing the term used to refer to her unborn child had a severe emotional impact on Duncan, particularly because it took place during what should have been a joyous event, the suit claims.

The technician at Total Sono in Maplewood, New Jersey, refused to apologize for her use of the offensive term, and the owner of the facility, Adam Duhl, said the term “would not have offended” him, the suit claims.

The suit said the term “monkey” is a “shockingly hateful and racist epithet used to dehumanize blacks for centuries,” the suit said. The technician and Duhl “should be well aware of the deeply derogatory meaning of the term ‘monkey,’ particularly as it has been prominent in the national media for the past several years,” according to the suit, filed by David DiSabato of DiSabato & Bouckenooghe in Mendham, New Jersey.

Those incidents include one in May 2016, when the Fox News network published an Associated Press article about plans of Obama’s daughter, Malia, to attend Harvard. The network, according to the website DiversityInc, felt compelled to delete readers’ comments referring to her as an “ape,” a “monkey” and other racial slurs.

In addition, the suit cites a January 2017 incident in which singer and actor John Legend was pursued by paparazzi at John F. Kennedy Airport who called him a monkey. Legend later said of the episode, “Black folks have had to deal with being called monkeys for a long time and dehumanization has always been kind of a method of racism and subjugation of black people.”

And, the suit said, this January, clothing retailer H&M was widely criticized for an online ad showing a black child wearing a hoodie labeled “coolest monkey in the jungle.” The company later apologized, the suit said.

The complaint also referenced a Huffington Post article that said Europeans have disparaged humans by comparing them to apes since the times of Plato.

The context of the incident will determine whether Duncan can recover on her claim, and many details are impossible to know at this point, said Katie Eyer, an anti-discrimination scholar and professor at Rutgers Law School in Camden. While the use of the term “monkey” could be an offensive racial slur, some people use that term for babies and children without intending racial connotations, said Eyer. The tone of the technician’s voice and the full content of her statements would provide context, Eyer said.

“Did she use the term because of its racial connotations? Or was it the use of a term in a context where we have reason to think it was not racial in nature?” Eyer said.

The focus on context is typical of modern civil rights litigation, because it’s rare to hear the open use of racial slurs, Eyer said.

Another important issue that will need to be addressed in the case is whether a single instance of offensive speech would be sufficient for the plaintiff to recover, Eyer said.

African-Americans still suffer frequent instances of disparate treatment at public accommodations, but litigation is less common, according to Eyer. In some states, such claims by individuals are based solely on Title II, which provides for injunctive relief but not damages. Duncan’s case relies on the New Jersey Law Against Discrimination, which provides individual damages and legal fees to a prevailing party in a race discrimination suit.

DiSabato said in an email that malice by the technician is not integral to the claims but the use of the term “monkey” in this context was “inherently malicious.” He said the recent examples cited in the complaint show that the term “is a well-known racial epithet.” DiSabato said the Huffington Post article gives historical context to the use of the term as a racial slur and serves to demonstrate that “no one in this day and age can plead ignorance as to the offensive nature of the term.”

Clinic owner Duhl, an obstetrician-gynecologist, did not respond to phone messages and an email seeking comment.