F. The Reasonableness of an Accuser's Perception of the N-Word Cannot Be Rejected as a Matter of Law.

Reasonableness in the context of Title VII N-word-based harassment must be assessed at trial because the weight and severity of the victim's encounter with the word is a complex, situational, fact-intensive experience appropriate for a fact-finder analysis, guided by experts. Melissa L. Breger, Making the Invisible Visible: Exploring Implicit Bias, Judicial Diversity, and the Bench Trial, 53 U. Rich. L. Rev. 1039 (2019). Nuanced matters of how racism affects individual plaintiffs, including whether their work environment was both subjectively and objectively hostile, may often be issues better decided by juries than by judges. The word “Nigger” carries the weight of a history inextricably bound with violence, and its weaponization in the workplace carries a spectrum of traumatic responses for which the quantum of harm necessarily requires an assessment by a fact-finder.

Moreover, a collective decision-making body is more likely to overcome racialized blind spots that inhibit a nuanced appreciation for the unique pathology of the N-word. Understandably, the full impact and power of the word may be inaccessible to non-Black audiences; there is no analogy that accurately captures the hatred baked into its etymology. But to some degree, non-Black people intuitively “get it”: A 2019 Pew Research Institute study showed that seventy-two percent of white respondents believe that white people should be prohibited from uttering the N-word. Anna Brown, Key Findings on Americans' Views of Race in 2019, Pew Rsch. Ctr. (Apr. 9, 2019). So while these blind spots are unavoidable in a racially complex society, given that harassment is a subjective standard, a jury is best equipped to adjudicate the impact of the word on an employee.


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