microaggressions in employment law

How the Language of “Microaggressions” Plays Out in Employment Law

By Ella Zalon (7/28/2023)

Commonly experienced in workplace settings, microaggressions are comments or behaviors made due to underlying biases held towards certain groups. They point to an implicit attitude one may hold about a protected class (e.g., ethnic, racial, gender minorities) and can be overlooked or unnoticed by bystanders. Microaggressions may not be direct remarks made about a protected class but rather about perceived characteristics associated with the group. Workplace policies and practices that disallow certain hairstyles more commonly worn by certain racial groups are an example of microaggressions that have been covered by the media in recent years. 

Though subtle or indirect, microaggressions can be damaging and have the potential to create a hostile work environment. More recently, the term has begun to appear in some courtrooms. Theoretically, if deemed pervasive enough, microaggressions could give rise to liability under Title VII (a federal law that protects employees from discrimination). Though there are little to no cases that hinge entirely on arguments around microaggressions, looking at some decisions in which the term is discussed can indicate how the use of this language plays out in court. 

When Microaggressions Don’t Hold Up in Court

There does not seem to be a clear consensus as to whether microaggressions can be considered sufficient evidence in court. 

In Chen v. Yellen (2021), a federal lawsuit in Illinois, a judge found that Plaintiff Fiona Chen did not sufficiently prove she was experiencing harassing behaviors or a hostile work environment. Arguments that the treatment Chen experienced were a result of her protected classes were deemed “speculative.” Chen implored the courts to consider other cases involving microaggressions, to which the court responded: “Regardless of whether an aggression is micro or macro, the Court considers the evidence of hostility in totality.” What can be surmised here is that the court is willing to consider microaggressions as part of the evidence, insofar as they are severe or pervasive enough to contribute to an overall picture of discriminatory behavior. It must be clear how something claimed as a microaggression could be construed as discriminatory. Importantly, a clear pattern of mistreatment and discriminatory behavior must be identified whether it arises from micro or macro aggressions.

On the other hand, courts have also held that microaggressions cannot be considered sufficient evidence of discriminatory treatment on their own. In Chambers v. City of Lakeland (2022), Plaintiff was a patrol officer claiming differential treatment and assignments from her male peers. The court asked her to specify and explain the microaggressions that she alleged she experienced. The judge concluded that the few instances of comments directed at Plaintiff, including comments that she was “always crying” “because she is sensitive” and the remarks “why do you wear your hair in a bun” and “do you even brush your hair,” were not pervasive and were not sufficient evidence of a hostile work environment on their own. Citing Weinberg v. William Blair & Co., LLC (2015), the court stated that “microaggressions are more similar to ‘mere offensive utterances’ than ‘physically threatening or humiliating statements,’ and are insufficient to support a hostile work environment claim.” 

In many cases where the employee-plaintiffs were unsuccessful, they failed to provide sufficient evidence of frequent or numerous microaggressions and did not provide specific descriptions of said microaggressions. On top of this, the term itself does not seem unanimously understood. For a microaggression-based claim to be successful, evidence must fulfill already established criteria for what legally entails a hostile or discriminatory workplace. 

How Can Language Around Microaggressions be Successfully Utilized in a Courtroom? 

Employees can protect themselves by calling out discrimination early on and being specific about what they are experiencing. In some cases, employees have successfully pleaded cases that included specific, concrete allegations of microaggressions tied to adverse employment consequences.

In Pringle v. Wheeler (2020), a judge denied Defendant’s motion to dismiss the case. Plaintiff alleged both discriminatory and retaliatory behavior at his workplace over a long period of time. He engaged in protected activity when reporting to his employer that he felt he was being discriminated against based on his race. Before and after this report, he experienced differential treatment, including being denied opportunities and being disproportionately scrutinized in comparison to his peers. The judge found that Pringle provided sufficient evidence of a hostile work environment, due to a pattern of differential treatment that altered his ability to do his job. The judge writes, “While macroaggressions undoubtedly constitute a hostile work environment, pervasive microaggressions have the ability to diminish the workplace significantly as well. Put differently, a severe episode that occurs as rarely as once violates Title VII, and so does a relentless pattern of lesser harassment that extends over a long period of time.” In Pringle v. Wheeler, Plaintiff successfully presented a persistent pattern of differential treatment over an extended period that affected his work duties and performance. The judge legitimizes “lesser” forms of harassment as constituting a hostile environment, so long as the incidents presents as a pattern and clearly affect one’s ability to do their job. 

References to and documentation of specific comments that can be construed as microaggressions can be crucial in a successful argument in court. In De Souza v. Planned Parenthood Federation of America (2022), Defendant’s motion to dismiss the case was denied by the court. An array of specific comments targeting Plaintiff’s religion were presented as evidence to the court. A supervisor told Plaintiff that she “does not want an old Jewish woman running a multicultural department” (Plaintiff is a Jewish woman) and described Jewish women as “birthing factories,” among other remarks. Plaintiff brought up concerns about “microaggressions” towards Jewish people in emails to her supervisor and was terminated soon thereafter. The dispute at hand during the motion to dismiss stage of the case was about the retaliation claims. The judge found that Plaintiff’s emails about microaggressions towards Jewish people at work could be deemed protected activity. It is significant that the court concluded that complaining about microaggressions specifically can be deemed protected activity because it legitimizes the notion that microaggressions can manifest discrimination. 

In both of these cases, employees asserted retaliation claims because they brought their concerns about microaggressions to the attention of their workplaces and they suffered adverse employment actions afterwards.

Takeaways about Microaggressions Within Employment Claims 

Subtlety and indirectness are inherent to microaggression, which makes microaggressions difficult to rely on as the primary evidence in employment cases. Frequency and severity of microaggressions are crucial to persuading courts to accept microaggressions as forms of discrimination.

Anti-retaliation protections exist for employees who experience discriminatory microaggressions. Calling something out as a microaggression at work can be considered protected activity, and the very act of calling it out early on can contribute to success in court. If you believe you’ve experienced microaggressions within your workplace and want to understand your employee rights, contact our experienced attorneys at Valerian Law PC to discuss the subtleties of such claims and explore potential legal avenues for protection.