Through the looking glass: racial jokes, social context, and the reasonable person in hostile work environment analysis

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4/29/2016 4/29/2016


Melissa K. Hughes*

Humor is laughing at what you haven’t got when you ought to have it. . . . Humor is what you wish in your secret heart were not funny, but it is, and you must laugh. Humor is your unconscious therapy.

Langston Hughes1


Communicating ethnic animosity through humor has long been an American tradition. As early as the seventeenth century, Americans have utilized racial jokes2 to ridicule the culture, dialect, dress, and traditions of each new wave of immigrants.3 Images of “little black Sambo,” “the drunken Irishman,” and “the stupid Pole” have helped to define which ethnic groups are accepted and which remain on the fringe of society.4 Although racial jokes convey a wide variety of messages ranging from friendly teasing to flagrant racism, when channeling racism and hostility they comprise one of the greatest weapons in the “repertory of the human mind.”5 Furthermore, while many dismiss jokes as a nonserious form of communication, racial jokes historically have played an important role in the development of American race relations.6

In the decades following the civil rights movement, minority groups successfully applied political and social pressure to persuade Americans to oust racial jokes from the public sphere. Joseph Boskin, a leading scholar on ethnic humor, contends that despite the invention of politically sensitive speech, the popularity of racial jokes in the closing decades of the twentieth century skyrocketed nationwide.7 Ida L. Castro, the Chairwoman of the Equal Employment Opportunity Commission (“EEOC”) stated, “[t]he Commission is seeing a disturbing national trend of increased racial harassment and retaliation at workplaces across the country. This harassment at work sites includes egregious behavior which is reminiscent of the days of the civil rights movement.”8 This simultaneous resurgence of racial jokes and harassment reveals that discrimination remains a pressing social and legal issue.

In October 2001, the U.S. Court of Appeals for the Ninth Circuit upheld one of the largest jury verdicts ever awarded for a hostile work environment claim based solely on racial jokes in the workplace.9 The case, Swinton v. Potomac Corp., is particularly important because it unequivocally defines pervasive racial joking in the workplace as actionable discrimination rather than merely offensive teasing.10 Furthermore, the court announced that its decision should remind employers to keep their workplaces free of racial jokes.11 Although the case has garnered much media and legal attention,12 the inevitably amorphous fact patterns of hostile work environment claims render the standard for determining what comprises severe or pervasive harassment inherently and intentionally vague.13 As a result, there is little consensus as to what conduct constitutes an abusive working environment across the circuits.14 Ultimately, Swinton v. Potomac Corp. represents just one interpretation of hostile work environments among a myriad of varying circuit court decisions.

Due to the inherently vague standards governing hostile work environment analysis, many commentators have noted that what conduct will be construed as pervasively hostile depends largely on the court’s perspective.15 Identical fact patterns may be ruled severely hostile by one court but found to be merely offensive by another.16 This confusion is compounded in racial hostile work environment claims because unlike sexual harassment, racial harassment has not been defined by statute or EEOC regulation.17 Furthermore, each of the five hostile work environment cases addressed by the U.S. Supreme Court involved sexual harassment claims.18 Despite the fact that racial and sexual hostile work environment fact patterns are not identical,19 racial harassment is governed by the principles developed for sexual harassment claims.20 Thus, courts and juries have less guidance as to what constitutes a racially hostile work environment.

Although hostile work environment claims inevitably assume amorphous fact patterns, which necessitate a flexible, case-by-case analysis, the U.S. Supreme Court has attempted to provide the lower courts with some guidance. Specifically, the Court has held that whether a work environment is hostile can be determined only by considering “a constellation of surrounding circumstances, expectations, and relationships” and evaluating the “objective severity of harassment . . . from the perspective of a reasonable person in the plaintiff’s position.”21 Despite these instructions, many questions remain unanswered regarding the extent to which social context should be examined and what factors should be included when conducting hostile work environment analysis.

In a recent law review article, The Social Context Variable in Hostile Environment Litigation, Michael J. Frank argued that social context should be restricted to an assessment of workplace culture.22 The crux of this argument holds that the threshold for objectively severe harassment should be raised in workplaces that exhibit a certain cultural coarseness. Therefore, in blue-collar work settings, where racist insults may be more common and theoretically less offensive, a plaintiff would be required to show a heightened level of harassing conduct to demonstrate a hostile work environment.

This interpretation of social context undermines the principles Title VII was designed to protect. First, it provides greater protection from liability to those employers who tolerate discrimination and bigotry in their work environments.23 Second, the hostile messages conveyed by racial harassment are not lessened by the frequency of their use. Therefore, the regular appearance of racial jokes or insults in a work environment is evidence of severe or pervasive racial harassment. Third, by requiring a plaintiff to demonstrate that he or she suffered harassment that is more severe or pervasive than the harassment that regularly occurs in the defendant’s workplace, this interpretation designates the perspective of a harasser as objectively reasonable.

In the context of hostile work environment claims based on racial jokes, a broad consideration of social context is particularly vital. Despite America’s long history of racist humor and the recent increase in racial joking, many Americans continue to view racial jokes as less harmful than other forms of racial harassment.24 Although it may be impossible for a judge or juror who has never experienced racial harassment to assume the perspective of someone who has, it is possible to designate America’s history of racial discrimination and the social impact of racial joking on targeted minorities as essential components of hostile work environment analysis. The purpose of this Note is to contextualize hostile work environment analysis based on racial joking with the historical and social developments of ethnic humor. Part II provides a fairly detailed overview of racial jokes in American history. An understanding of how racial jokes have influenced race relations within our polyethnic citizenry is an important first step to understanding the social context in which all hostile work environment claims are based. Part III discusses the competing theories of how racial jokes function, the extent to which they can construct power relationships, their ability to permit the public expression of ordinarily impermissible messages, and the psychological effect of hostile joking on targeted minorities. Part IV critiques the workplace culture interpretation of social context and suggests that Title VII analysis would greatly benefit from the incorporation of a sociohistoric perspective into the determination of whether racial joking in the workplace creates an objectively hostile work environment.


A. The Development of Sambo and Other Caricatures of African-Americans

Few racial groups have endured more ridicule and racial stereotyping than African-Americans.25 Exactly when white colonialists began to stereotype African-Americans as comic figures is unknown; however, it is clear that the “little black Sambo” caricature was invented soon after the first African slaves were brought to America in the seventeenth century. Frivolous, loyal, and happy-go-lucky, Sambo most likely developed from two sources. First, travel diaries and other diaries from that time indicate that whites marveled at their slaves’ propensity to boisterously laugh, dance, and sing.26 White Americans considered the skill with which African-Americans danced and sang as evidence of their childlike nature and racial inferiority, reinforcing the notion that slavery represented a natural order of the races. Second, the exaggerated Sambo caricature may have stemmed from the obsequious persona many Africans adopted as a strategy for surviving slavery.27 In his comprehensive analysis of

African-American humor, Mel Watkins suggests that playing the part of the happy and hapless slave effectively lowered a master’s expectations for productivity, thereby reducing the workload and decreasing the likelihood that a wayward slave would be punished.28 This Sambo-like persona may have staved off punishment on the plantation; however, it ultimately became one of the most powerful and pervasive symbols of white supremacy.

Beginning in the 1820s, black-face minstrel shows became a favorite form of entertainment among white Americans, and Sambo began to appear regularly on the vaudeville stage. White performers transformed themselves into Sambo by blackening their skin, enlarging their lips, and imitating what many claimed to be authentic representations of the plantation slave’s dialect, song, and dance.29 This nineteenth century Sambo, with his big lips and crazy hair and who dressed in his master’s

hand-me-down clothes, was a reincarnation of the European court jester that was immediately identifiable to white audiences.

As the popularity of black-face performances grew, two additional caricatures of black culture were introduced: (1) the African-American as a slow-witted plantation slave, and (2) the outrageously dressed city dandy.30 “Jim Crow” and “Jim Dandy,” as the caricatures were called respectively, wreaked havoc on the stage while a white interlocutor served as a benchmark against which their hilarity was measured.31 For white audiences, Sambo, Jim Crow, and Jim Dandy represented society’s alter ego: “[S]low witted, loosely-shuffling, buttock-scratching, benignly-optimistic, superstitiously-frightened, childishly lazy, irresponsibly-carefree, rhythmically-gaited, pretentiously-intelligent, sexually-animated. His physical characteristics added to the jester’s appearance: toothy-grinned, thick-lipped, nappy-haired, slack-jawed, round-eyed.”32

During the nineteenth century, African-Americans were social outcasts regardless of whether they were enslaved or free. However, even as white Americans struggled to define “blackness” as socially inferior, they were simultaneously intrigued by African-American culture. The heathen songs and dances of “darkest Africa,” which had excited the imaginations of Europeans, were seemingly tamed on the stage and served as a source of amusement for white Americans. The black-face performers, who claimed to present authentic black performances,33 provided the perfect vehicle through which whites could satisfy their curiosity.
Black-face performers ascribed the most primitive impulses of human nature to African-American culture. This allowed white audiences a release of the emotions ordinarily repressed by social norms and reinforced the audiences’ notions of white supremacy.34

B. Racial Jokes During the Nineteenth Century

Racial jokes during the nineteenth century reflected two primary social concerns. First, the flurry of jokes that targeted newly arrived immigrant groups reflected the concern of white Americans that they could lose their privileged social position. Such jokes typically defined immigrants as stupid, dirty, or lazy, and emphasized their inalterable differences.35 Second, racial jokes usually centered on current social concerns. For example, during the Industrial Revolution, entrepreneurs succeeded by constantly evolving with the furious pace of technology.36 Those who could not keep up, such as immigrants with little exposure to many industrial innovations, were depicted in ethnic jokes as stupid.37 Thus, many popular jokes at this time ascribed to minority groups an utter lack of sophistication and understanding of newly invented technologies, reflecting the pressures and anxieties created by the new industrial society.

Irish immigrants stood out as the most distinctive group to arrive in America during the nineteenth century.38 In the 1840s, a population crisis and a lengthy famine brought thousands of unskilled Irish immigrants to America’s shores.39 Consequently, popular jokes at this time featured the Irish as melodic drunkards who had a natural inclination toward politics, but little understanding of modern technologies.40 Common jokes described the Irish as falling off ladders, being blown up by dynamite, or demonstrating a general lack of culture and class. For example:

A young Irishman whose family was scattered pretty well over the English-speaking portions of the globe emigrated to America. Soon after his arrival in New York he paid a visit to the Bronx Zoo. He halted in front of a cage containing one of the largest kangaroos in captivity. After watching the curious creature for some time in an awed silence, he hailed a keeper.

“What’s that thing?” he asked.

“That,” said the keeper in his best professional manner, “is a marsupial, a mammal that carries its young in a pouch on its breast, lives on roots and herbs, can jump twenty feet at one leap, is able to knock a human being down with a kick from either hind leg, and is a native of Australia.”

“For the love of Hiven!” cried the Irishman, bursting into tears.

“Me sisther’s married to wan of thim!”41

Ethnic joke cycles did not define immigrants only as ignorant greenhorns. In contrast to the Irish, Scottish immigrants appeared in ethnic jokes as canny, hard-working people who would use any means necessary to acquire what they desired:42

An advertisement for a funeral parlour in Camden, South Carolina stated: “Bargains in coffins.” Fourteen suicides occurred that day.

A Scottish child killed his parents so that he could go free to the annual picnic of the Orphans Society.43

The image of the canny yet covetous Scotsman contrasted sharply with the stupid Irishman jokes that circulated simultaneously. Interestingly, racial jokes appear to have impacted the ability of a minority group to assimilate into American society. For example, nineteenth century commentators noted that the Irish were almost ubiquitously employed in unskilled positions, regardless of their trade, whereas the Scots reputation for “prudence” often enabled them to secure positions in the more lucrative positions of skilled mason and gardener.44

As the Irish achieved higher socioeconomic status, other minority groups faced the brunt of twentieth century “stupid immigrant” jokes. In the 1940s and 1950s, ethnic jokes began to circulate depicting

Italian-Americans as inept dunces, capable of performing only the simplest of jobs.45 Donald C. Simmons, a psychiatrist who has researched the psychological nature of humor, suggests that the proliferation of the Italian-American joke cycle in the mid-twentieth century was spurred in part by their successful assimilation and eventual competition with minority groups that had successfully achieved a level of socioeconomic success.46 Thus, many jokes paired Italian-Americans with African-Americans to illustrate that they also resided at the lowest levels of the racial hierarchy:

Two Negroes racing on a beach near Boston, one shouting to the other, “Last one in is an Italian.”

An Italian gets on a bus in a southern city and takes a seat near the front. The bus driver tells him, “Niggers must sit in the back of the bus.” The passenger indignantly replies, “I’m not a Nigger. I’m an Italian.” Whereupon the driver shouts, “In that case, get off the bus!”47

The anti-Italian post-World War II joke cycle, however, was relatively short-lived, dying out almost entirely by the 1970s when their association with organized crime significantly changed their social image from dunce to mobster and effectively rendered “stupid” Italian jokes ridiculous.48

Following the death of the Italian-American joke cycle, the Polish were targeted as the next scapegoat of American ethnic humor. Alan Dundes hypothesized that for many Americans, jokes disparaging
Polish-Americans became one of the few remaining venues through which antiminority and lower class sentiments could be safely expressed in the years following the civil rights movement.49 For the first time in American history, expressing anti-African-American sentiments was socially taboo.50 The reign of politically sensitive speech, however, did not eradicate
antiminority sentiments that many white Americans continued to harbor. As a relatively powerless minority group, Poles could be mocked with little political or social sanctions.51 Thus, anti-Polish jokes became a paradigm for the antiminority sentiments that had formerly been targeted against African-Americans and other minorities.

C. The Joke Wars of the Late Twentieth Century

Joseph Boskin argues that the onset of the Reagan-Bush era marked the beginning of “joke wars” in which cycles of ethnic jokes significantly increased as a result of increasing racial tensions.52 Jokes disparaging African-, Mexican-, and Jewish-Americans erupted onto the social scene.

1. Jewish-American Princess Jokes

Jewish-American Princess jokes originated within the confines of the Jewish-American community as a form of self-depreciating humor that functioned to strengthen the solidarity of the Jewish community.53 In the mid-1980s, however, the term was adopted outside the Jewish community, and the Jewish-American Princess jokes became increasingly anti-Semitic.54 Jewish-American Princess jokes built on the image of the Jewish mother as an “overly protective, solicitous, anxious, demanding, and martyred parent.”55 The Jewish daughter, the central figure of the Jewish-American Princess jokes, was portrayed as an extension of her mother: Spoiled and narcissistic, the Jewish-American Princess had a love for material things that took comic proportions.56 The following are three examples of popular Jewish-American Princess jokes:

How does a [Jewish-American Princess] commit suicide? She jumps off her shoe boxes.

What is the new Jewish disease? Maids. You die if you don’t have one.

How can you tell the widow at a Jewish funeral? She’s the one wearing the black tennis outfit.57

Although the jokes mainly sparked outrage among the Jewish communities, the jokes were anti-feminist as well as anti-Semitic.

2. African-American Jokes in the Post-Civil Rights Movement Era

After an initial reduction in African-American racial jokes following the civil rights movement, African-Americans again faced the brunt of American racial jokes during the late 1970s as a backlash against affirmative action spread across the country.58 The long-lived commercialization of the “little black Sambo” image came to an end during the 1960s; however, black-face caricatures continued to appear in fraternity houses and business functions throughout the rest of the twentieth century.59 Many jokes explicitly referenced slavery:

What did Lincoln say after a three-day drunk? I freed the who?

Other jokes defined African-Americans as stupid:

The Harlem High School cheer: Barbeque, watermelon, Cadillac

car / We’re not as dumb as you think we is.

Why did the black man dress up for his vasectomy? Because if he was going to be impo-tent, he was going to look impo-tent.60

Another common theme connected blackness with violence:

How do you keep five black guys from raping a white woman? Throw them a basketball.

What do you get when you have one white and two blacks? A victim.61

The civil rights movement significantly reduced society’s tolerance for racial jokes in the public sphere, helped to promulgate adherence to politically sensitive speech, and greatly increased the upward mobility of African-Americans as a whole. Ironically, it also triggered the circulation of a new round of racial jokes that reflected the concern of white Americans over their own social status in the face of upwardly mobile African-Americans.

3. Mexican-American Jokes

Simultaneously, white anxiety regarding the influx of

Mexican-American immigrants triggered a new breed of racial jokes. For example, jokes from this time period often featured both
Mexican-Americans and African-Americans:

A Puerto Rican [or a Mexican] and a black man jump from the top of the Empire States Building. Who lands first? Who cares? or The black man—because the Puerto Rican [or Mexican] spray paints his way down.62

Some jokes referenced Americans’ concern over the influx of Mexican immigrants in the 1990s:

Why will there be no Mexicans in the next Olympics? Because anyone who can run, jump, or swim has left the country.63

Like many earlier joke cycles, these jokes reflected white concerns over maintaining the status quo and preserving national resources such as jobs and health care for white Americans.64

4. White Anglo-Saxon Protestant Jokes

The proliferation of White Anglo-Saxon Protestant (“WASP”) jokes completed the cycle of the joke wars that swept the country during the closing decades of the twentieth century. Minorities fought back against the racial caricatures that had historically played a central role in American race relations by stereotyping upper-class white Americans as elitist, uptight, penurious, sexless Puritans whose detachment from the troubles of everyday life took comic proportions.65 Popular examples included:

How many WASPs does it take to change a light bulb? Two—one to call the electrician, the other to make sure the martinis are chilled.

Why did God create WASPs? Because someone has to buy retail.66

In 1992, President George H.W. Bush added fuel to the fire while touring a grocery store when he stared in amazement at the grocery scanner on the checkout counter and asked for a demonstration of how it worked.67 Compared to many other racial joke cycles, the WASP jokes were relatively short-lived, perhaps due in part to the social and political pressure brought to bear by the white majority.68

The WASP joke cycle is particularly interesting because it marks a significant change in American race relations. No longer do minority groups “grin and bear” oppressive racial jokes, but rather, they now fight back with aggressive humor of their own.

Ironically, these joke wars developed during the 1980s and 1990s, a time when many Americans considered racial turmoil largely subdued. If what makes people laugh is truly a good measure of what is on their minds,69 however, then racial tensions swirled just beneath the surface of the American conscience. Given the central role that racial humor continues to play in American society, it is increasingly important that we determine whether jokes simply provide a momentary reprieve from our increasingly work-driven lives, or whether they are in fact capable of seriously influencing modern race relations.

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