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This story is part of our November 2021 issue. To subscribe, click here.

The term microaggressions comes up frequently for lawyers investigating discrimination and harassment complaints. This has been the case especially since the racial reckoning and racial justice movement sparked by the murder of George Floyd in 2020. Because many of these race-based harassment complaints, which create hostile work environments, include allegations of microaggressions, employers must understand what microaggressions are and how they differ from — but can be just as harmful as — intentional misconduct motivated by an employee’s identity or status.

Microaggressions: Unintended but Painful

Most commonly, a microaggression involves unintentional conduct that is an external expression of an internal bias. Although microaggressions often involve indignities that can seem minor, they target people based on their marginalized-group membership. Whether couched as a compliment (such as telling a Black person “You’re so articulate!” or telling a transgender individual “You don’t look transgender”) or as simple curiosity (such as asking an Asian American person “Where are you from?”), these comments and behaviors tend to “otherize” the person targeted.

Over time, these “minor” slights have a painful cumulative effect. They put the target in an untenable position: either point out the behavior and risk being labeled “hypersensitive,” or ignore the behavior, making it more likely that it will occur again. 

Dog Whistles: Verbal Camouflage

Dog whistles, by contrast, are intentional. The speaker intends to convey a racist, sexist or otherwise discriminatory message, but does so by couching the message in innocuous language to avoid alienating the listener. For example, terms such as “urban” or “inner cities” historically have been used as coded language to refer to the African American community. Similarly, terms such as “globalist” or “cosmopolitan” historically have been used as coded words for Jewish people.

A dog whistle and a microaggression share some similarities, particularly in how they may go unnoticed by those lacking the proper context. The crucial difference, however, is in their intent. While a microaggression tends to be the unintentional result of unconscious biases and assumptions, a dog whistle is a kind of “coded message” that plays to a specific audience while avoiding detection by the population at large.

How to Tell the Difference

Distinguishing between microaggressions and dog whistles can be difficult. The key is to look for evidence of whether the speaker knowingly made a statement that the speaker knew was racist, sexist, antisemitic or homophobic. What was the context of the statement or behavior? Were several problematic comments made to the same person? Did the comments have a common racial, gender-based or otherwise problematic pattern or theme? If so, this may be evidence that the comments were not innocent. Would the comment or behavior be considered offensive by a reasonable person? An employer or manager cannot simply rely on personal understanding of whether the behavior was, for example, racially coded. Fortunately, outside organizations can be helpful resources. Here are a few.

• The Anti-Defamation League and Louis D. Brandeis Center provide lists of common, harmful tropes about Jewish people and the history behind them. 
• GLAAD, an LGTBQ advocacy organization, publishes a Media Reference Guide containing a glossary of harmful and offensive anti-LGBTQ terms. 
• The website of Ferris State University’s Jim Crow Museum of Racist Memorabilia discusses the history of African American stereotypes and how the harmful attitudes around them manifest today. 
• The American Psychological Association has online resources that explore myths and stereotypes about Asian Americans, as well as the work being done to address these attitudes. 
• Disability rights advocate Sheri Byrne-Haber outlines ableism in the article, “Disability Microaggressions – AKA ‘Ableist things people say.’”

While these resources are not exhaustive, they can provide some information as to whether a referenced stereotype is common enough that the person invoking it would reasonably be aware of its ableist, racist, antisemitic or homophobic nature. A dog whistle should be met with the employer disciplining the employee, while the employer should educate the staff through training in the instance of a microaggression being used.

As employees continue to seek equity and fairness in the workplace, issues of diversity and inclusion will continue to dominate the conversation. Attracting and retaining diverse talent requires learning to spot and address unintended and intentional transgressions that can make the workplace uncomfortable for employees from marginalized communities. 

Vida Thomas is a Sacramento-based partner with Oppenheimer Investigations Group. She has 25 years of labor and employment law experience and has handled more than 200 workplace investigations. Vida may be reached at vida@oiglaw.com.

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