“Race Trouble”: Competing Accounts in a Trial About Anti-White Racism

Abstract

To understand one type of race trouble, this study examines a federal civil trial brought by a white employee suing her African American supervisor for creating a racially hostile work environment. After explaining race trouble and its connection to talk about racism, background is provided on civil trials and this particular trial. Events about which competing accounts were offered in the trial included assignment of office space, meeting conduct, and use of the N-word and African American language. For each event I show how anti-white racism was argued for and how that argument was resisted. In the conclusion, I consider what this trial illuminates about twenty-first century U.S. race relations.

“Race trouble,” as defined by Durrheim et al. (2011, p. 27), “is a social psychological condition that emerges when the history of racism infiltrates the present to unsettle social order, arouse conflict of perspectives and create situations that are individually and collectively troubling.” Race trouble is something experienced by white people as well as people of color, although the character and severity of trouble differ for parties. Most theories of racism locate racism's source either in the minds of individuals (e.g., Henry & Sears, 2008) or in social structures (e.g., Bonilla-Silva, 2017). Race trouble focuses attention on practices of interaction.

In twenty-first century America the term “racist” has become a devil term (Weaver, 1953), much like “communist” was in the middle of the twentieth century. To label a person or event as racist conveys its evilness but glosses exactly what is occurring. Moreover, the label is not one whose application people usually agree about (Durrheim et al., 2011). As Greenland et al. (2018) put it, “the boundaries between ‘discrimination’ and ‘not discrimination’ can be highly contested and mobilized toward specific political ends” (p. 542). Examining what people say and do in sites where there is contestation either about the topic of race or between people of different races offers a different and useful way to engage race issues (Robles & Shrikant, 2022). In this paper, I pursue this goal in a trial in a U.S. civil court about whether a supervisor had created a racially hostile work environment for her employee.

Most often, U.S. trials in which a party is charged with racial discrimination involve a Black person or a person from another non-white category as the plaintiff. It is possible, though, for a white person to charge an institution with engaging in racial hostility. A survey conducted by Pew (Gonyea, 2017) found that 55 percent of white Americans felt that white people experience discrimination, even though 84 percent of them also said they had not experienced race-based discrimination themselves. The trial that is this paper's focus is a 4-day federal jury trial in which an African American supervisor at a major airport was accused of creating a race-based hostile work environment for a manager who was white.

The paper begins by briefly reviewing past research on race and racism talk. Then I provide background on civil trials, the trial data, and the criteria the trial judge instructed jurors to use to assess whether workplace conduct should count as creating a racially hostile workplace. In the next sections, I identify the racial categories of relevant parties and explain my discourse method. The analysis of the trial's racial trouble has two parts. First, I show how Black persons in authority were framed by the white plaintiff as being unreasonable to a white employee in their ordinary workplace activities. I also show how this was resisted by the defense. Second, I examine a set of speech actions that were framed by the plaintiff as racial hostility and by the defense as a reasonable expression of the defendant's racial identity. In concluding, I draw out implications of this trial for the politics of race in twenty-first century America.

A Brief Summary of Research on Racism in Talk

Since the 1960s in the United States until the Trump presidency in 2016 overt expressions of racism in public life were relatively rare. To be sure hate-filled, prejudiced speech had not entirely disappeared (Billig, 2001; Cervone et al., 2020), but the public expression of racism until recent years otherized “softly” (Bonilla-Silva, 2017, p. 11). This court case took place in 2014 before the increase in explicitly racist expression. Yet in those earlier years, as well as the present, one need only look at statistics on housing, income, employment, health, life expectancy, and incarceration to know that one's race strongly affects life outcomes. Black Americans fare more poorly whatever the measure (e.g., Hill, 2008; Quarshie et al., 2020).

Sacks’ (1992) concept of how membership categories are used in talk, developed in the 1960s, set the stage for later work focusing attention on references to race in talk (e.g., Stokoe & Edwards, 2007; Whitehead, 2009). Van Dijk (1987) analyzed how white American and Dutch speakers expressed what has come to be called modern racism, which includes denials of prejudice while expressing negative opinions of people of color (Augoustinos & Every, 2007, Goodman & Burke, 2010). In addition, modern racist talk includes hesitations, repairs, and false starts as white people recount problematic stories about non-white persons (Condor 2000; van Dijk, 1987). Racism can also be accomplished through “microaggressions.” First identified by African American psychiatrist Pierce (1970), Microaggressions are subtle, apparently innocuous blows that cumulatively cause significant harm that come about due to white people's verbal claims or acts of superiority. Microaggressions produce feelings of being excluded (Williams, 2020); they are slights, frequent small activities of disrespect that routinely occur in work and public life. Moreover, because persons who are white are the powerful group in American society, it is generally assumed that microaggressions can only go in one direction: from white people toward Black people.

As noted, to be called a racist is a strong moral indictment of a person. As a result, most white people do communicative work to present themselves as nonracist, justifying negative views of people of color through appeals to other values. For anyone, but especially persons of color, it has also become rhetorically sensitive to make a claim that someone is racist. To assert that an action or another is racist runs the risk of a speaker being accused of being overly sensitive and “PC” or playing the race card (Greenland et al., 2018). All of this is to say that talk about race, as well as interactions in which race has historically shaped who had power, are fraught with tension.

Analyzing the South African context in which white people comprise 9% of the country and where apartheid existed till 1994, Durrheim and his colleagues (2011) coined the term “race trouble” to describe the current post-apartheid situation. In twenty-first century South Africa the middle and wealthy classes have become deracialized with many managerial and government positions held by Black Africans. Such is not the case among the poor who continue to be almost all people racially identified as Black. Actual race troubles that South African citizens experience have become more complicated than structural theories of racism, as developed through critical race theory would suggest (de la Garza & Ono, 2016). It is more complicated than white people creating laws and distributing services that oppress Black people.

Everyone in South Africa is troubled by race. In ordinary exchanges Black persons in professional situations worry that they will be labeled hypersensitive, and “not black enough.” In turn, people who are white fear being labeled as racists. Many South African white people born after 1994 believe that they shouldn’t be held accountable for the past and believe that reverse racism occurs regularly (Durrheim et al., 2011). South Africa and the U.S. have quite different demographic profiles and histories, but in both countries histories of racism have imprinted their societies making many ordinary and institutional decisions, as well as moments of talk and action, instances of race trouble. Race trouble also occurs in countries where there are few white people. Sambaraju (2021), for instance, examined how anti-Black African racism operated in India.

Laws passed in the United States to remedy some inequities, such as the Civil Rights Act of 1964, were written in race-neutral ways. But “contrary to their state intentions, civil rights laws have actually augmented rather than diminished the possessive investment in whiteness” (Lipsitz, 2006, p. 25). As a result, it is possible for a white person to sue a Black person for discrimination and racial hostility in the workplace. A website advertising a law firm that specializes in suits about discrimination explains, “Strong claims for reverse discrimination often involve a situation where a Caucasian employee is treated markedly different from minority co-workers because of their race by a non-White supervisor or manager”(Spitz, 2014). Consider, then, how civil trials operate and one such case about anti-white racism.

Civil Trials, This Trial's Data and Method

In civil trials both the accusing party (the plaintiff) and the accused (the defendant), must testify. The two parties narrate the “same” events, describing what self and others said and did. These proffered accounts may offer differing descriptions of what occurred, as well as, in this case, present competing proposals about what is (or is not) reasonable conduct in a workplace. In a civil trial, a jury is asked to decide if the plaintiff's or the defendant's story is supported by the preponderance of the evidence. If the two stories are equally plausible, a decision is made in favor of the defendant. If a civil case arrives at trial, a quite unusual event (Langbein, 2012), extensive fact-finding work will already have been done and be available to all. That is, a civil case begins with attorneys taking sworn statements (depositions) from key parties and relevant witnesses. It is this shared fact-finding phase that leads all but 1–2 percent of civil cases to either settle or be dismissed. For cases that proceed to trial, the facts are ones that do not speak for themselves; they can be interpreted differently, woven together to create competing stories. In addition, when a trial does occur, attorneys use the depositions, often gathered a year or more earlier, to challenge witnesses’ veracity. Trials are a site for reality disjunctures, to use Pollner's (1975) label; they are places in which the assumption that people share a common world that they will see similarly is challenged.

Between 2011 and 2015 U.S. federal courts carried out a pilot project to examine the effect of cameras in civil courts. The trial that is the focus of the present study is Joanna Bielawski v. City of Cleveland et al., a four-day trial conducted in the Northern Ohio District in 2014. A shortened summary of the case based on the website description is below.

Plaintiff Joanna Bielawski, a former Safety Programs Manager at the Airport, brought a civil rights action against the City and Jeanette Saunders, the Chief of Administration at the Airport. Plaintiff alleges she was subject to unequal terms and conditions of employment based on her race. Plaintiff is Caucasian, and the Defendant is African American. Plaintiff alleges that she was treated differently than African American employees; she was prevented from attending certain manager meetings, had job duties added unfairly, and that Saunders talked inappropriately about racial issues. Bielawski resigned for these reasons but decided to reapply to the position. By that time, Plaintiff's position was filled by an African American. After deliberating, the jury decided in favor of the defendant. ¹

Data include detailed notes of the videotaped, 4-day trial. Following review of the notes, verbatim transcripts were created of eight trial segments, totaling a little more than seven hours. Segments came from the full trial but focused on attorneys’ examination of the plaintiff Bielawski and the defendant Saunders. A verbatim transcript includes all words, “uhs” and “ums,” and repetitions and partial words of all trial participants. It is more detailed than courts create to record trials in which errors of high status speakers are regularly cleaned up (Walker, 1986). At the same time, a verbatim transcript is less detailed than those created in conversation analysis (Hepburn & Bolden, 2017). The reason for favoring this intermediate level of transcript specificity is to facilitate the theoretical goal of identifying discourse moves that are relatively conscious and open to reflection while keeping transcripts accessible to readers from many backgrounds (Craig & Tracy, 2021).

Discourse Analysis (DA) is a label for a family of approaches that look closely at actual talk to build interpretations. The kind of DA I employ in this paper, action-implicative discourse analysis (Tracy, 1995), assumes that people design their conduct in order to achieve desired goals and avoid undesirable ones. Because trials are constrained institutional practices, the goals of plaintiff and defense attorneys are identifiable, at least at a general level, before the trial begins. Tracy and Reijven (2023) label these the attorneys’ “argumentative projects.” An argumentative project is the view of the dispute that each side is working to get jurors to believe. In this case, the plaintiff's argumentative project was to persuade the jury that Bielawski, a white employee, was the target of anti-white racism, that is, she was racially discriminated against by her Black supervisor. The defense's argumentative project was to persuade the jury that Saunders's conduct was reasonable and that there was no racial hostility directed at Bielawski. In sum, it can be said that the categories of plaintiff and defendant, with ties to their argumentative projects, are omni-relevant (Sacks, 1992), offering interpretive screens for all that is said during the trial.

The Trial's Conduct Criteria

Courts primarily use the language of “credibility” to reference what jurors should be giving attention as they assess witnesses’ communication. As the judge noted in his opening, “to weigh the evidence you must consider the credibility or believability of each person who testified.” Another important term in the courts that jurors are instructed to honor is “reasonable.” Although courts occasionally have defined reasonable, especially when it is introduced as a modifier of “doubt” in criminal trials, the term has been usually treated as an ordinary one that English-speaking adults understand, that does not need to be explained, and that judges should not define (Diamond, 1990). More than almost any other term, “reasonable” is the evaluative yardstick jurors are expected to apply in making assessment during civil trials. In examining jury instructions for the term, “reasonable,” D’Antonio (2019) found that there were 2,816 uses of the term in 62,000 lines of criminal and civil jury instructions. In the civil trials, she found reasonable to modify 82 different things, for example, “reasonable cost” or “reasonable fear.” In the Bielawski trial, jurors were repeatedly asked to make judgments about workplace conduct drawing on what a “reasonable person” is likely to believe. Of note, assessments of a reasonable person were treated as race-less.

Jurors had two decisions to make during their deliberation. In addition to deciding if the workplace was a racially hostile environment, they needed to determine if Plaintiff Bielawski's leaving of her job should count as “constructive discharge.” Jurors were to assess this drawing on their lifeworld experiences of what is reasonable.

Excerpt 1 (Judge instruction, [italics highlight segments about which there is commentary])

Constructive discharge requires that the Plaintiff show the Defendant deliberately created intolerable conditions, as perceived by a reasonable person.….Plaintiff must show that the work conditions were not merely hostile, but rather so difficult or unpleasant that a reasonable person in her shoes would have felt compelled to resign.

To make a judgment that a reasonable person would find a set of working conditions intolerable involves complex considerations. Given a trial is occurring, we know there is room for case-making and different assessments of conditions. Importantly, what reasonable people would find intolerable in twenty-first century American workplaces is likely to depend on a host of factors, including what exactly was said or done, its frequency, the particular industry, the parties’ job roles and responsibilities, the occasion in which the sayings and doings occurred, and perhaps—a factor I explore in this analysis—the race of parties in particular roles.

Within discourse studies, the more typical way to conceptualize issues of conduct is in terms of face and face attack (Goffman, 1955), politeness (especially Brown & Levinson, 1987), and facework strategies (Archer, 2011; Tracy, 2020). There are differences among these theoretical notions, but all recognize that besides giving information, talk is always doing identity and relational work—claiming or implying good and bad qualities about the spoken-to person, the speaker, and, where relevant, spoken-about parties. This analysis, then, connects the language of the courtroom to discourse and argument concepts.

Racial Makeup of the City, Organization, and Trial

According to Wikipedia, the demographic distribution of Cleveland has been relatively stable since the 1970s. In the 2020 census, 47 percent of the population was African American, and 32 percent was non-Hispanic white. ² From the trial it could be inferred that the Cleveland Airport employed Black people in airport supervision and management. The director of the airport was a Black person, as was the defendant, Saunders, and other managers who testified. Other airport leaders were white. The race of parties was either visually available during their testifying or, when a party's acts were simply discussed, their race would often be noted. At one point in the trial, the plaintiff attorney listed 10 + prior employees in supervisory and management positions, inquiring about that person's race and the race of the employee who replaced them. In each case, a Black employee was hired to replace a white employee. By going through this list one person at a time, the plaintiff created a portrait of the airport as a place favoring Black persons.

This portrait, however, was not sustained when the defense built its case. At that time the defense attorney engaged in a similar move—going through a list of 10 + employees to show that people were replaced with white personnel. Thus, while the exact racial makeup of the Cleveland Airport was not presented in the trial, it was clear that many administrators at the airport were African American. From the outset of the trial, then, we have a flip in the usual link between institutional power and race. Not only were key institutional players Black persons, but they were not tokens. In Saunders’ weekly staff meetings of 5–7 managers, a site that becomes a place of focus in the trial, Bielawski was the only white manager.

Describing Conduct as Unreasonable; Implicating it as Racially Hostile

During the trial, norms of appropriate workplace conduct were rarely asserted explicitly; rather a person's actions were described in ways that invoked an act's unreasonableness. Some of these acts characterized as unreasonable were not officially about race, but by virtue of the reported action being carried out by a Black person in authority toward a white person—and the argumentative project of the plaintiff—the unreasonableness was implicated to be racial hostility. Most of the trial focused on the conduct of Saunders, the main defendant, but attention was also given to the director of the airport who, as noted, was an African American man. Consider one of his decisions.

The Director and Assignment of Office Space

A workplace norm invoked through attorneys’ questions and witnesses’ responses concerned where a manager's office should be located. The norm can be formulated as: “If a person's office could be located in several places, its location should facilitate the manager's key job responsibilities.” Consider how this norm was invoked in Excerpt 2 which involves Bielawski's (P) ³ attorney questioning the Black airport director (Dir) about his decision to move Bielawski from the building responsible for aircraft, fire, and rescue, which was located at the side of the airport, to the administrative offices in the main terminal. This sequence of questioning followed direct examination where the director had given several reasons for the decision to not only change who supervised Bielawski but to also move Bielawski's office to a different building, a move she strongly opposed. One reason the director had given in prior testimony was that the position of safety manager was responsible for the safety needs of all areas of airport functioning, not just the one unit. Other reasons were that it made sense to have Bielawski's office located close to her supervisor and because of a complaint that she was spending too much time socializing with the firefighters.

Excerpt 2 (AP = Attorney for Plaintiff, Dir = Airport Director)

1 AP: You talked earlier about um the reason- I believe you said the reason that- that you wanted to uh move Joanna Bielawski from operations to uh [airport main terminal] was uh the phrase I wrote down was you can’t put the fox in the chicken coop. And I take it that you mean by that that um if someone's supposed to be watching somebody, they shouldn’t be consorting with them, they shouldn’t be right in there, they should have a little distance, is that what you meant?

2 Dir: The um the decision to reassign- um the decision we had- the reassignment was based on the function. Not- not Ms. Bielawski. It was based purely on the function itself. Um and yes, the point that I was making was to have um- the um- the very behavior that we’re trying to monitor- uh be monitored by the person who's controlling that behavior, is not a best practice.

3 AP: But didn’t you also say that when Ms. Bielawski started, uh and there hadn’t been anybody in safety for a while, that- that the practices, the s- the occupational safety practices were kinda lax, that they had to be told this is what you hafta do, and they had to be kinda sat on?

4 Dir: I’m sorry, I don’t understand the question.

5 AP: When Ms. Bielawski started m- didn’t she hafta kind of create a culture of safety out there that- that- that people had not been following, that they hadn’t been uh getting their inspections, and they hadn’t been making sure their equipment was up to OSHA standards?

6 Dir: That- that's correct yes. Mmhmm.

7 AP: Okay. So if you’ve got someone sorta birddogging, sort of uh a traffic cop, or- or- or a watchdog who's right there and then you take them away and put them you know hundreds of yards away, isn’t that gonna create uh you know sort of the- the m- the uh cat's away, so the mice will play type of attitude?

Across this exchange AP is working to create an impression that there was not a good reason for moving Bielawski's (P) office. In turn 1, he repeats the idiomatic phrase that the director had used to justify the move—that leaving Bielawski in her first office location was like putting a fox in the chicken coop. Idioms like these, as Drew and Holt (1989) showed, are a staple of everyday talk to complain about the actions of another. These idioms are robust and difficult to argue with. AP, though, does argue with it, pointing to features of the situation that problematize its suitability. In addition, he ends with a competing idiom, turn 7—the cat's away so the mice will play—that argues for an opposite conclusion.

In turns 3 and 5 we see the attorney for the plaintiff beginning to problematize the Director's assertion that being in the main terminal was a better location for Bielawski with her safety program responsibilities than being with fire and rescue. It is a soft challenge at this point but later becomes pointed.

Excerpt 3 (Attorney for Plaintiff)

But certainly there's more of a need for it in ARF [aircraft rescue and fire] and out- out in the field than on the second floor where you know maybe a secretary's gonna get a papercut or something, correct?

AP uses a creative, extreme case formulation (Pomerantz, 1986) of a small injury, i.e., a paper cut, to challenge the safety needs of areas of the airport besides fire and rescue. In so doing he both invokes a norm that office locations should be selected to match key job responsibilities and, given the attorney's argumentative project, he implies the decision was because of anti-white racism. Although this question was objected to by the defense as “not a question,” sustained by the judge, and not answered, it is well-known that everything said in a trial may get used in the jury's decision making (Weiss & Wick, 2017)

Conduct in Management Meetings

A second area that the trial examined concerned conduct in management meetings. Both the plaintiff and the defendant worked to show the other party to be the unreasonable one, engaging in behaviors that were at odds with professionally expected norms. Of note, these norms were invoked by describing actions not attentive to an understood norm. Meeting norms invoked through defendant's and plaintiff's competing descriptions included:

Meeting newcomers should be welcomed, and newcomers should display positive affect about being included in the group.

Participants should be attentive to what is occurring in a meeting.

The meeting talk should focus on the assigned task.

Consider how the first weekly staff meeting run by J-Saunders (D) that J-Bielawski (P) attended was described by both parties and how each implicates the unreasonableness of the other. Excerpt 4 is from the defendant; excerpt 5 is from the plaintiff.

Excerpt 4 (AD = Defense Attorney; JS = Defendant)

1 AD: And what do you recall about that meeting?

2 JS: Um I remember um the meeting taking place as it does weekly. Um Joanna (P) and I had talked about attending the first meeting, um we actually had a conversation about it prior to the meeting, not that day, but prior to when our meetings were. Um and that I expected her attendance w- as with all the managers. That particular meeting um when I got there, um there were people sitting at the table, and the room is a fairly reasonable sized room with a long um conference room table longer than this uh table here. And there's chairs along the back wall on both sides of the wall. And there were members of the- the management team sitting at the table and against- kinda spread out. And Joanna was sitting at the very last chair, um along the wall. Um when I um got in, I invited Joanna to the table, um asked her to please join us. “Welcome, please join us.” And she shook her head no, and s- and stood there- and sat there. Other members of the team tried to invite her to the table, um and she would not come to the table. Um after several people tried to uh invite her to the table, we um during the meeting, Joanna sat in the corner, um on her phone, not talking at that time, but texting or whatever she did with the phone, um basically the whole time that she was in there.

Of note, in the defendant's description of what happened, she portrays herself, as well as others in the meeting, as welcoming to Bielawski (P) and encouraging her to join the group, with Bielawski shaking “her head no” (Turn 2), a dis-preferred response to an invitation (Heritage, 1984). In identifying the chair Bielawski took as “the very last chair,” and as one that was “in the corner,” she uses two more extreme case formulations. Saunders(D) frames Bielawski as rejecting the group's welcome. In addition, Bielawski is described as inattentive, and not just monetarily but “the whole time,” another extreme-case formulation that highlights inappropriate conduct. Descriptions of actions in context rely on listeners supplying “unstated assumptions so as to establish the recognizable sense of an action” (Heritage, 1984, p. 180). In this trial, this recognizable sense was the unreasonableness of Bielawski's actions.

Plaintiff Bielawski's description of her first staff meeting offers a markedly different portrait.

Excerpt 5 (AP = Attorney for the Plaintiff, JB = Plaintiff)

1 AP: Okay, and you heard some testimony about the first meeting, do you have a recollection of the first meeting?

2 JB: Uh yes, I do.

3 AP: Can you tell us about it, please?

4 JB: Yes, um I walked into the meeting room, and the seats were not available, so I sat by the wall. And um I felt safe there, to be- honestly after the conversation that she had with me about checking me, um I was okay with sitting by the wall.

5 AP: Did she come into the meeting and actually invite you to come sit at the table?

6 JB: No, she did not.

7 AP: Um did she give any sort of uh acknowledgement of you, or welcome of you to the rest of the group?

8 JB: No, she did not.

9 AP: Okay, did she acknowledge you at all?

10 JB: Uh I don’t recall if she acknowledged me, she was in her meeting doing her thing.

11 AP: And did her meetings- were they substantially different from the weekly meetings you were used to under Mr. Williams and Mr. Zabo [prior supervisors]?

12 JB: Significantly.

13 AP: Can you describe the difference, please?

14 JB: Uh Fred Zabo's meetings were uh very professional, they were airport business-geared, um he followed an agenda and stuck to it, and Jeanette's (D) were just the opposite.

15 AP: And uh tell us about Jeanette's.

16 JB: Uh there was a lot of personal conversation, things that she and her other managers did um outside of work, uh there was a lot of uh chit chat, a lot of business unrelated to the airport, um a lot of uh topics discussed that weren’t on the agenda.

Bielawski's (P) account agrees with the Defendant's in her acknowledgement that she sat along the wall (Turn 4) but the account disagrees about the reason. Not only were “seats [at the table] not available,” she was not welcomed, and possibly not even acknowledged (Turn 7). In addition, Bielawski frames her choice to sit by the wall as motivated by concern about her safety because of a reported conversation, denied by the defendant, about “checking” (Turn 4) that she framed as a threat to herself. No attention is given in Bielawski's account to whether she was on her phone during the meeting, i.e., not attending. Instead, Bielawski makes an additional criticism of how Saunders (D) conducted meetings. Saunders's staff meetings were the “opposite” of professional; they followed no agenda and had a lot of “personal talk” (Turns 14 and 16). Thus, while the two parties did not disagree as to what was unreasonable conduct, they disagreed as to whether their own or the other party's actions should count as evidence of it, with each person's description implicitly blaming the other.

At a later point the plaintiff attorney asked the defendant about allowing discussion of “personal issues” during meetings in which the attorney listed a set of non-work topics, a description further implying the defendant's lack of professionalism. In response Saunders’ (D) sought to reframe the personal talk as the kind of small talk expected at the start of meetings (Coupland, 2003) rather than simply being inefficient, unfocused meeting talk. Defendant and plaintiff largely agreed on what was reasonable conduct, but they disagreed as to whether the defendant's behavior counted as an instance of unreasonable conduct. In addition, because Saunders was being sued for anti-white racism, Bielawski's description implicitly asserts that her unprofessional conduct was a sign of discrimination. When conduct is non-normative and puzzling, people draw on knowledge of possible solutions (Durrheim et al., 2011; Whitehead, 2009). In societies where race trouble is common and parties are visibly different racial categories, racism is always a possible explanation. The issues of office space and meeting conduct can be seen as subtle moves for framing Saunders as engaging in anti-white racism. The reasons for that charge became clearer as the trial explicitly focused on racial matters.

Racially Hostile Conduct vs. Racial Identity Expression?

Whereas there seemed to be agreement regarding how office space should be assigned and what was suitable conduct in professional meetings, such was not the case with how race might legitimately infuse talk or be its topic. This dispute centered around three issues. The norms implied by the plaintiff, with which the defense disagreed, were the following:

The N-word should never be used by persons of any race category in a work context.

People should use standard English, avoiding African American English.

There should be no attention in talk to the fact that employees are from different racial categories.

The event that received the most interrogation by both attorneys throughout the trial, referred to as the “picnic incident,” involved the supervisor Saunders (D) allegedly saying the word, n**** ⁴ in a staff meeting. Consider, first, the plaintiff's version of events.

Excerpt 6 The Picnic Incident (JB = the plaintiff, AP = attorney for the plaintiff)

1 JB: Uh we were sitting at the table, and uh out of the blue, she [Saunders] t- starts talking about how we can’t use the word picnic. And nobody responded, and then she went into an explicit explanation of uh what it means. And when she was saying it- do you want me to say exactly what she said, because-

2 AP: Yes.

3 JB: I remember a lot of it. Um it was pick a- and then it was n-sp, and then she looked straight at me, and she was glaring at me, and she says it means when a white man packs a lunch and watches a Black man hang.

4 AP: And- and sh- you spelled the word n-sp. Did she actually use that word?

5 JB: Yes

6 AP: Okay, and she looked at you and- and talked about the white man packing a lunch to watch the Black man hang?

7 JB: Yes.

8 AP: Okay. And uh how did that make you feel?

9 JB: Horrible.

10 AP: Why?

11 JB: I took offense to that.

12 AP: What- what offended you about it?

13 JB: Why she would say something first of all in a business meeting. Why she would look at me like I had those feelings towards people like that. I took it personally.

14 AP: Okay um- and you said- Did she talk about that in response to a question from Diane Stevens [secretary for defendant]?

15 JB: No, she did not.

To sum it up, the plaintiff Bielawski is asserting that Saunders (D), her Black supervisor, used the word, n*****, to explain why the word “picnic” could be offensive to Black employees, and paired that explanation with a glare at her, a white woman (Turn 3) in a room where other managers were African American. This act, given the trial context, is framed as not just hostility, but racial hostility. Because the comment was not related to the official agenda but according to Bielawski came “out of the blue” (Turn 1), not a response to a question (Turns 14 & 15), its inappropriateness is augmented.

A different picture emerges when the plaintiff's attorney questions Saunders (D). Important to note is that the trial is occurring about three years after the meeting in which the picnic incident occurred and about a year after the deposition of witnesses.

Excerpt 7 (JS = Saunders, the defendant; AP = attorney for the plaintiff)

1 AP: Okay, um let's talk about the N-word.

2 JS: Okay.

3 AP: Um did you actually use the word? And I’ll spell it instead of saying it, N-sp, did you use that word in a meeting?

4 JS: From the onset, I’ve always said, and I’ve always contended, and I still contend, that's not a word that I use commonly in language or in conversation period. And I did not recall um saying that in that particular meeting. Um I know I described the situation. I know I described it in a very professional way, um but because it's not a word that I use, um I d- I didn’t- from the beginning, I said I- I don’t use it, I don’t use it. So I- I know that that would’ve been very, very odd for me to use that word.

5 AP: Well, are- are you admitting you did, or are you denying that you did?

6 JS: I did not um after- I knew I didn’t from the beginning. Um I thought it was odd that it was said that I used it. And then I started thinking about it and I’m like okay, I know I don’t use it. I know what I was describing. I know the word is a part of the explanation. Did I actually use the word or not? I- and I couldn’t actually recall after that. I’m- I started second-guessing myself. And did I use it or not? And- I don’t wanna lie. But I honestly from the beginning don’t believe that I used the word.

7 AP: Well you know, you said in your deposition that you did. Correct?

8 JS: I- I- in my deposition, I know I testified what I just said, that I don’t use that word um in common language or conversation generally at all. Again, I did not wanna lie, and be told that in my- in my professional explanation of it that I actually used the word. Um so- but I know that's not something that I use. I- I don’t use it.

9 AP: I’ve got it up on the screen, but it's there- there it goes. Sort of. There we go. Alright, this is uh page 74 from your deposition, and I can go back a little farther if you want a context, but the basic quote is uh you’re saying Diane [the secretary] said she was okay, and she didn’t know, some others said they didn’t know, others said they did- that they did know. Question, then you actually did use the N word. Yes.

In responding to the plaintiff attorney's question about whether she used the word n***** in the meeting, Saunders uses many restarts (Turns 4 and 6), signaling discomfort with the question. The central fact being disputed in excerpt 9 is whether Saunders(D) had said the word n*****. The plaintiff attorney seeks to frame the issue narrowly, using a selected utterance from the deposition (Turn 7) to problematize what Saunders is saying at that moment in the trial. In essence, the attorney is making the deposition document speak (Drew, 2006) in his effort to constrain what Saunders can reasonably answer. Since she had stated in the deposition that she had used the word (Turn 9) if she is “denying” it now in the trial, the implication is that she is currently lying. By naming the alternative to denying as “admitting,” the plaintiff's attorney further implies that using the word n*****—is problematic regardless of who uses it and for what purpose.

Saunders(D) responses work to develop an alternative, broader frame. In excerpt 7, which continues for an additional 11 question-answer exchanges, Saunders draws attention to the larger Q&A sequence that had occurred in the deposition, as well as her reasons for saying “yes” to the question. In essence, she is arguing for a different context for viewing her deposition response (Morasso, 2012). The larger context is that in the deposition she had stressed that she did not use the word in her common speech but since she was not sure exactly what she said, had agreed that she did use n***** at the meeting to explain why “picnic” could be offensive to African Americans. After the deposition, her sense that she never uses the word in her ordinary speech, led her to think she probably had not, even though she had agreed in deposition questioning that she had. In essence Saunders frames the difference between the deposition and what she was saying right then in the trial as the result of the extended time she had had to reflect about her likely action in the meeting and how she usually speaks. Across the 11 additional Q&A turns the plaintiff's attorney seeks to get Saunders to give a straightforward “yes” to whether she said the word n***** whereas Saunders keeps working to invoke the larger talk-and-reasoning frame.

Witnesses were not uniform in what they reported. Some witnesses said Saunders(D) used the word n***** and others stated she did not. In addition, there was a dispute as to whether the explanation of why picnic was offensive emerged from a question the secretary put to Saunders, thus making her use of the term non-gratuitous and an act not directed against Bielawski versus it being an act that was initiated spontaneously, thus making it more egregious because of its non-relevance. In disputing whether Saunders used n*****, there seemed to be agreement that n***** should not be used in professional meetings.

The defendant's attorney, however, does not let that understanding stand. In his closing argument, he directly challenges that saying of the word n***** would count as creating a racially hostile workplace. He argues that the meaning of the word depends on the context in which it is said, what Heritage (1984) defines as indexicality. Or, to draw on Oliver Wendell Holmes, the defense attorney can be seen as arguing that, “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” ⁵ Consider how he advanced this position:

Excerpt 8 (Segment in closing argument, defense attorney)

Now let's talk about the picnic incident. And yes, the phrase that is supposedly the underlying phrase is pick a n*****. And I just said it, and I’m a white person. But I don’t think anybody's gonna sue me over that because I’m an attorney as well. And I hafta deal with it in a professional context. So I said it. I feel that it was appropriate because of what we’re doing. Ms. Saunders(D) steadfastly denies saying it…Okay. Well if she said it one time, does that create the hostile environment that the law requires? The Judge already read the law to you. It's a pretty high standard, it can’t just be a one-time thing unless that one-time thing is pretty extreme. And I think an explanation to a direct question asked by a Caucasian employee, I don’t think that quite meets it. But again, that's your decision, you’re the jury.

There would be few twenty-first century Americans who would dispute that n***** is a highly problematic word. In his book, N*****: The Strange Career of a Troublesome Word, the African American scholar Kennedy (2003) begins by posing a series of questions:

How should n***** be defined? Is it part of the American cultural inheritance that deserves preservation? Why does n***** generate such powerful reactions? Is it a more hurtful racial epithet than insults such as kike, wop, wetback, mick, chink, and gook?… Should blacks be able to use n***** in ways forbidden to others? Should the law view n***** as a provocation that reduces the culpability of a person who responds to it violently? Under what circumstances, if any, should a person be ousted from his or her job for saying “n*****”? (p. 3)

In sum, the plaintiff and defense attorneys take two positions about Kennedy's questions. The plaintiff attorney argues that saying n***** in the workplace regardless of who says it and for what purpose is an infraction of workplace norms and creates a racially hostile workplace. The defense attorney, in contrast draws attention to two features of the context that make it acceptable: (1) it was said by an African American, and (2) it was a term of reference, not address, said for a purpose related to an official topic in a meeting. Of interest is the way he marks his assertion as debatable and delicate. A commonplace of jury trials is that attorneys need to direct how jurors should make sense of what is happening in a way that does not too strongly seek to persuade, i.e., attorneys should not tell jurors what they must conclude (Brehm, 1966). In framing the possible one-time saying of n***** by an African American as not an instance of anti-white hostility—“I don’t think that quite meets it”—he uses a negatively tilted, qualified statement to advance his position. In essence, by clothing his assertion about the n-word with double qualification (“I don’t think” vs. “it is not” and “doesn’t meet” vs, “not quite meet”) he treats what he is claiming as say something that others may see differently, a state of affairs that makes sense in a society where white sensitivities as treated as the norm and where white people are part or all of the audience being addressed (Rawls & Duck, 2020).

A second contested norm related to race involved accusations that the defendant Saunders used African American language in workplace meetings. Although using the term “urban vernacular” rather than one of its formal linguistic labels—Black English Vernacular (Labov, 1972; Spears, 1992) or the current preferred label, African American language (King, 2020)—through the way the attorney used reported speech snippets, it was implied that this language variety was the one used by Saunders(D), and that it was inappropriate.

Excerpt 9 (Plaintiff Attorney Question to Defendant JS)

Do you remember ever talking uh in a meeting about either yours or a friend of yours uh and- and you using the- the term uh baby mama, or baby daddy?

In the context of a trial, to ask if someone “ever” did something is to accuse the other of inappropriate action. Questions about whether Saunders used the phrases, “I be Xing” and “we be Xing” were directed to her and several other witnesses by the plaintiff's attorney. The defendant Saunders use in meetings of phrases found in some African American dialects was labeled by the plaintiff attorney as “inappropriate speech.” The defense attorney challenged this characterization.

Excerpt 10 (AD = attorney for defendant, JB = Plaintiff)

1 AD: How- and I- I’m- I- I wrote down your quotes. Uh “we be,” or “I be checking,’ how that could possibly be construed as racist?

2 JB: Um it's a language that's primarily focused on the African American community, and if- when you have a mixed group of people, it makes me as a Caucasian very uncomfortable.

3 AD: I’m curious how you deal with day-to-day life just walking down the street or in a mall or in a restaurant, because I hear people use phrases like that all the time. If s- if your waiter at a restaurant comes up to you, and he or she is African American-

4 JB: Mmhmm?

5 AD: And uses a phrase like “I be checking,” say I be checking on your dinner-

6 JB: Mmhmm.

7 AD: Are you now offended, and you’re going to leave the restaurant?

8 JB: Uh no.

9 AD: No. So there's some level where this is not a racially intimidating or racist against white people language?

10 JB: Um I don’t think it's appropriate.

11 AD: Again, we’re not talking about appropriateness, ma’am, this case is about race.

12 JB: Well I- I would say it made me feel separate from the group.

• In excerpt 10 we see Bielawski asserting that speech “primarily focused on the African American community” (Turn 2) that is used when white people are around is “inappropriate” (Turns 2 & 10). She claimed that such talk led her to be “very uncomfortable” (Turn 2) and to “feel separate from the group” (Turn 12). Thus, we have a claim that for a Black person to speak like a Black person is violating what is professionally to be expected; in this trial context such action is being forwarded as evidence of anti-white racism. In framing speaking standards as raceless, Bielawski is not recognizing her privileging of whiteness, and in so doing perpetuates whiteness as invisible, at least for those who inhabit it (Ahmed, 2007). Lipsitz (2006) notes that hierarchies of good versus inferior action in U.S. society—such as ways of speaking—are racialized, and it is these baked-in, racialized preferences that create the tacit racism of which so many white Americans are unaware (Rawls & Duck, 2020).

In addition to defendant Saunders use of African American language in workplace meetings, she was also criticized for drawing attention to race in other ways. Bielawski reported that Saunders referred to “fish and grits and greens” in planning a potluck, spoke about the Lion King movie, saying it was about the Black man “yearning to be free.” These comments, Bielawski argued, “made her feel excluded.” In cross-examination, the defense attorney challenged that these topics were racist incidents. After asking Bielawski(P) if she understood the difference between talking about race and making racist comments, he interrogated several of her comments Consider the exchange about the Lion King:

Excerpt 11 (AD = Defense Attorney, JB = Plaintiff)

1 AD: Can you please explain to me why um somebody yearning to be free is racist?

2 JB: Um it's not racism, what I’m saying is in a professional business meeting with a mixed group, nobody's talking about movies. And then she mentions something like this. It d- it's- why would you say something like this if race isn’t the first thing on your mind? When I go to a meeting, race isn’t even an issue. I’m on business. When I share my office with William Davis, the Assistant Fire Chief, and we have a meeting with Roosevelt Davis, the Fire Chief, they’re both African American men, and race isn’t an issue…

---2 additional utterances------

5 AD: You felt you were being tagged as white?

6 JB: I- yes, I- yes I did.

7 AD: Okay, and you felt that that was a bad thing?

8 JB: I don’t think it's a bad thing, I think it shouldn’t even be in the conversation.

In Excerpt 11 we again see Bielawski (P) asserting that saying anything that has an African American link in “a professional business meeting with a mixed group” is having race on the mind (Turn 2), which tags white people as white (Turn 5) and is a kind of talk that shouldn’t happen. (Turn 8). In sum, Bielawski, with the help of her attorney's questions, worked to present any practices that made race visible in the workplace—use of African American language tokens, raising of topics more connected to Black Americans—as not only inappropriate, but as evidence of racial hostility. Of note, nowhere in the trial was any way of talking or acting labeled as “white.” As Frankenberg (1993, p. 1) puts it, “‘whiteness’ refers to a set of practices that are usually unmarked and unnamed.”

The defense attorney disputed that the plaintiff's stance was reasonable, and in the end the jury sided with the defense, judging that the plaintiff had failed to evidence her charge of a Black supervisor creating a racially hostile workplace for a white supervisee.

Conclusions

Examining this 4-day civil rights trial in which an African American supervisor was charged with creating a racially hostile work environment for her white subordinate provides insight into the competing accounts currently lively in the U.S. regarding what is reasonable conduct in workplaces with people of different races. These competing accounts make visible three aspects of twenty-first century race trouble.

First, both white and black speakers have difficulty talking about issues involving race. The hateful actions linked to use of the word n***** in the past meant that saying the word in a court of law today in which its very use was the topic of examination, was problematic. Most speakers of both races did not use the word, n*****, either spelling it or referencing it as “the N-word.” This discomfort, one might say, is to be expected for white speakers given the history of the term's use. However, as previously noted, when African American defendant Saunders was asked about her use of the word the frequency of her restarts were striking. In this professional context it was a delicate task for her to even reference the term.

Second, given the U.S.'s history, dilemmas of race and conduct are inescapable in workplaces (Shrikant & Marshall, 2022). A common assumption in workplaces is that if power were distributed more evenly racial problems would disappear. The U.S. remains a good distance from a fair distribution of power, but examination of this trial suggests certain kinds of race trouble occur as powerful roles include more people of color. In American workplaces it has been rare for white persons to be lower rank persons in an organization comprised of multiple equal and higher rank African Americans. Bielawski's workplace was a counterexample. That Bielawski felt excluded and discriminated against most likely was shaped by the airport's power demographics, and this trial suggests that whites can become hyper-sensitive about routine work actions and decisions when there are Black supervising authorities and colleagues. If Black professionals can and do “act white,” workplaces may be able to hide the existing racial hierarchy, but of course, this asymmetrical standard is part of what it means for an institution to be racist. Studying workplaces, such as airports, that include more than a number of token participants from a nonwhite category seems a promising site for future investigation of racial trouble.

Finally, the neutral, professional standards that Bielawski and her attorney described Saunders as violating were forwarded as evidence of her anti-white racism. These “neutral” standards, I would argue, are better understood as expression of whiteness and therein become one tool of tacit racism. Any cultural difference in practices associated with African Americans, such as use of idiomatic phrases and small grammatical choices, discussing food preferences or movies connected to Blacks, might be interpreted as bringing race in where it is not relevant. The trial outcome rejecting this conclusion was a small positive act combatting racism, but that the trial even occurred points to how deeply raced American society is. Race trouble is likely to be part of American life for some time. We may be able to move forward in small decision-making moments, as this jury did, but unwarranted hostility directed at people of color—the unmarked meaning of “racism”—­as well as charges of anti-white racism, are likely to remain institutional staples of American life.