Monday, June 11, 2018

Campbell v. State of Hawaii DOE (9th Cir. - June 11, 2018)

It's not a term that I use much (if at all) in modern parlance.  But I admit to having used it on occasion in the past.  And until today, I didn't realize that it might have an offensive meaning.

Today's opinion is (in part) about what it means to "rag" on someone.  As in:  "She was ragging on the security guard."  We all know what that means:  to berate, to torment, or (to use another modern term) to "get on someone's case."

But the plaintiff here says it's also discriminatory.  That it relates to someone being "on the rag;" i.e., concerns a woman's menstrual cycle.  So when the principal here wrote the teacher up for "ragging" on someone, she says that's evidence of discrimination.

Here's what Judge O'Scannlain says about that:

"Campbell [the teacher] argues that Jones [the prinicpal] created a hostile work environment when he chided Campbell for “ragging” at students and staff. A memorandum formally reprimanding Campbell for these actions stated that she “verbally ragged” a security officer and students, and it instructed her not to address people on campus “in a yelling or ragging manner.”

Campbell argues that Jones’s use of the phrase “ragging” or to “rag” on or at someone was sexually motivated and offensive. Namely, she contends that these comments are tantamount to the phrase “on the rag”—a phrase both sides concede can be a crass and insulting way to refer to a woman’s menstrual cycle. She argues that a reasonable jury could therefore conclude that Jones’s use of such language created a sexually hostile work environment. We disagree.

[] Campbell’s argument entirely disregards the difference between the well-known phrase to “rag” or “rag on” something and the potentially offensive phrase “on the rag.” As both the DOE’s investigator and the district court found, the distinction is critical. The phrase to “rag” something is not at all offensive; it simply means “rail at” and “scold” or “torment” and “tease.” Rag, MerriamWebster Dictionary, (last visited May 29, 2018); accord Rag, Oxford English Dictionary, (last visited May 29, 2018). Webster’s gives a perfectly benign example: “[S]everal readers called in to rag the editor for his paper’s repeated grammatical lapses.” Rag, Merriam-Webster Dictionary, (last visited May 29, 2018). Campbell points to nothing that would contradict this well understood meaning of to “rag” or “rag on” something. Instead, she conflates the phrases, repeatedly citing sources that recognize the offensive nature of specifically saying that a woman is “on the rag,” but which say nothing of the phrases Jones actually used."

I totally get that point.  When, in my (relative) youth, I would say that someone was "ragging" on someone, I definitely didn't mean (at all) to refer -- or have any connection to -- menstrual cycles.  It was not even a gender-specific or -preferring term; indeed, I only recall using it to describe men.  So my contemporary understanding of the term was indeed as Judge O'Scannlain describes it.

But I wonder if that's really the end of the matter.

Because terms can have particular content even if the speaker doesn't intend it.  Particularly when we're talking about things that may be intrinsically discriminatory.  Tons of examples come to mind:  witness the contemporary debates, for example, about "niggardly" or "calling a spade a spade."  The closest analogy to today's opinion might be calling someone "hysterical."  You can definitely say -- as Judge O'Scannlain does here -- that the term has a "neutral" meaning.  But you can also definitely say that it has a discriminatory origin and meaning.  Just as with "ragging," maybe the origin (or history) of the word matters.  Or maybe it doesn't. 

But, at a minimum, I don't think it ends the debate simply to say that the terms are "different" and so you're improperly "conflating" the two.  For my own purposes, I'm probably educated by thinking about today's opinion, and will not knowingly use the term "ragging" in the future as a result.  Given the background and potential impact on the listener, saying "torment" or "rail at" or any of the other dozen or so perfectly-good-enough synonyms for "ragging" seems superior.

Which doesn't answer the question that Judge O'Scannlain has to resolve:  whether the word has a discriminatory effect, or can create a hostile work environment.

But it does help at least me decide what words to employ in my own life.