Unintended Result: Zero-Tolerance Policy for N-word Leads to Security Guard’s Firing

October 21, 2019

National and international media have picked up on the termination of Marlon Anderson, a Wisconsin high school security guard who was recently fired for telling an African-American student not to call him the N-word.  Anderson was let go under a zero-tolerance policy that forbids staff from ever using the word.  The termination decision was subsequently rescinded.  Cher agreed to pay his legal fees.  A GoFundMe campaign was quickly reaching $20,000 goal to help defray his missing salary.  He also was immediately offered a temporary position to keep steady employment.  Anderson’s story literally hits close to my home in Madison; I can see the high school from my kitchen window, and two of my children will be attending it.

How Zero-Tolerance Policies Came About

Zero-tolerance policies came into favor in the ‘90s in an attempt to find a simple solution to combat sexual and other forms of harassment.  Employers wanted to send a strong and clear message.  The policies vary in scope, but the concept is there will be zero tolerance for any harassment.  If an employee engages in the proscribed harassment, he is terminated.  End of story.

In an earlier case involving the Madison Public Schools, a white teacher used the N-word to respond to an African-American student who was calling a white student a “cracker.”  The white teacher told the African-American student, “How would you feel if I called you [the N-word]?”  The teacher used the actual N-word, as opposed to a generic word or the term “N-word.”  Student and public outcry alleging the teacher was racist led to her suspension and voluntary resignation.  Thereafter, the school system adopted a policy under which no staffer may use the N-word or else face immediate termination.

The Sad Case of Marlon Anderson

Anderson has been a security guard in Madison schools for more than 11 years.  He is known as a role model for students.  He became involved in an altercation between an African-American student and an assistant principal whom the student had pushed.  The student called Anderson the N-word about 15 times.  The security guard eventually said words to the effect,” Don’t call me that.  Do not use that word.  Don’t call me a N******.”

Anderson was aware of the school system’s zero-tolerance policy.  However, he did not think it meant he couldn’t tell someone calling him the N-word not to use it.  After the incident, the principal told the security guard she would support him but that he likely would be terminated, which he was.  Students walked out of school in support of Anderson, led by his son, who is a senior.

Anderson has been on various national news shows, emotionally discussing how for generations his ancestors were called the N-word and had to stand silently and take it.  He said he made a conscious decision to use the word because it’s routinely heard in the school.  The security guard said the zero-tolerance policy is “lazy” and that the context must be considered. The termination decision was subsequently rescinded.

Context is Everything

To avoid discrimination claims, employers obviously want to treat similarly situated people the same way.  That is why zero-tolerance policies are so alluring.  There are no questions about grey areas.  If you engage in certain conduct like speaking the N-word, you’re terminated.  Everyone is treated the same way, and therefore there are no favorites – and no potential for treating similarly situated people differently.  Zero-tolerance policy proponents also want to send the strong message that no form of harassment will be tolerated at all.

While the goals are admirable, harassment cannot be evaluated without critical thinking, as Anderson’s case clearly shows.  What happened and why?  Are there mitigating circumstances?  Are we throwing the baby out with the bath water?  Are we going to lose our best employees because of a draconian application of a policy?

Bottom Line

Employers should take the time and watch Anderson discuss why he did what he did.  After thinking about why he should not have been subject to immediate termination, you should review and potentially revise your harassment policies to make sure they are both strong and reasonable.  Some diet sodas don’t have zero calories – they may have 10 calories.  Having no tolerance for workplace harassment doesn’t have to translate into a non-thinking termination decision.

Anderson can teach us a lot about what it has been like to be an African-American in the United States.  We should take the opportunity to learn from this wise, highly intelligent, thoughtful, gentle, and kind man.

This article, slightly modified to note recent updates, was featured in the October issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

For more information about "Unintended Result: Zero-Tolerance Policy for N-word Leads to Security Guard’s Firing," contact Saul C. Glazer at sglazer@axley.com or 608.260.2473.