No Such Thing as an 'Innocent' Bystander: Who Should be Held Responsible for Discrimination?
As lawyers, we are often called upon to investigate these types of discriminatory incidents and to advise clients on the legal ramifications if a target asserts a claim. Putting aside credibility issues, when the events are undisputed, documented, or recorded, the rights and responsibilities of the target and the offender are generally clear.
September 30, 2021 at 01:48 PM
7 minute read
Several college athletes are enjoying burgers and beers at the local hangout celebrating a recent victory. They are joking around and rehashing their great plays when one of the players says to the sole Black team member who scored the winning point, "Hey, we're lucky there's affirmative action because, without that, you wouldn't be here to help us win. "A few players snicker nervously and avert their eyes from the Black player, who responds, "that's not cool." The team captain remains silent; the offending speaker is his roommate. The Black player reports the incident to the coach, who says "boys will be boys" and urges the Black player to shrug it off "for the good of the team" as they enter the playoffs. Learning that the targeted player spoke to the coach, his teammates start avoiding him in the locker room and exclude him from after-game celebrations, such as the burger bash that set this in motion.
The creative team at a fast-growing tech company is brainstorming about potential new products. These meetings are often contentious and fast-paced, with colleagues shooting down others' ideas to move on to their own. Everyone knows you have to be tough and not take the substantive critical feedback personally. So, when one team member finds flaws in another's suggestions, attendees expect the debate to continue focusing on the ideas and not on the person who offered it or the person who challenged it. But this time, the proponent, a white male known for being a bully, lashes out at the co-worker who questioned the idea: "Who cares what you think, you should go back to where you came from and take the China virus with you." The colleague of Korean descent starts explaining that he was born in the United States, that his grandparents came from Korea, not China, and that the comments are highly offensive. Others in the room who identify as of-Asian descent look at one another, not knowing whether to speak up or remain silent. One white colleague immediately condemns the remarks and urges that the group adjourn so that HR can get involved. The team leader who doesn't know how to react says, "let's just move on." After the meeting ends, the Asian colleagues assemble with the sole white defender to assess how to respond. The rest of the team is uncomfortable, but they don't want to speak out for fear of repercussions.
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