Colorado’s “Holy War” of Words

Workplace inclusiveness begins with employers, not lawyers.  I have dedicated my career to promoting inclusiveness, as a civil rights fellow earning a master’s degree in social work, as a Trial Attorney for the U.S. Equal Employment Opportunity Commission (EEOC) in Denver, as a litigator mostly representing employers since 2000, and as a longtime trainer, coach, and cheerleader for Colorado’s in-house employment counsel and human resources (HR) communities.  I have looked at workplace discrimination and inclusiveness from many perspectives now, and they inform my conviction that HB-1136 promises far more problems for Colorado employers than progress toward inclusiveness.

I testified against HB-1136 before the House Judiciary Committee on February 14, 2013, pointing out very specific, practical concerns about the impact of this legislation on small employers and on Colorado’s already overstretched administrative and judicial resources.  After several minutes of testimony, one Representative asked, paraphrased, “you’re here on behalf of employers, right?”  The Denver Business Journal accurately quoted most of my response, “No, Sir, I’m here as a former EEOC Trial Attorney and employer representative to lend balance to what has become an ideological jihad.”  

Qusair Mohamedbhai, an employee-side attorney who testified in favor of HB-1136 on behalf of the Colorado Trial Lawyers Association (CTLA), apparently heard a very different message and took offense.  In a Letter to the Editor of the Denver Business Journal, Mr. Mohamedbhai characterized my use of the term “jihad” as “offensive,” “hateful,” “anti-Islamic rhetoric.”   Instead of interpreting the use of “jihad” as an innocuous reflection of how Arabic words and loanwords have become part of our collective vocabulary (e.g., algebra, carat, magazine), he ascribed hateful, anti-Islamic sentiments to me, thereby successfully deflecting focus from the substantive policy problems I raised about HB-1136.  This dynamic mirrors most employers’ experiences with discrimination claims, where legitimate, non-discriminatory personnel decisions come under attack as masking some latent discriminatory animus due to, among others, race, religion, and national origin.

Ironically, just a few days after the Denver Business Journal published his letter denouncing my use of “jihad” as “offensive,” “hateful” and “anti-Islamic rhetoric,” Mr. Mohamedbhai popped up in the Denver press again, this time as the attorney for Franklin Sain.  In a statement released to the Denver Post, Mr. Mohamedbhai and his law partner defended Mr. Sain’s threatening emails to Colorado Representative Rhonda Fields as “free speech.”  Mr. Mohamedbhai’s statement also accused Representative Fields of complaining about threatening emails for political gain.  Read more here:    

Mr. Sain’s emails to Representative Fields, an African-American woman, teem with the most vulgar racist and sexist epithets in our collective vocabulary . . . words that we can only utter as the “F-word” and the “C-word.”  Read them here,   Those words reflect the nadir (an Arabic loanword) of decency; they are often a prelude to violence.  In fact, they are verbal violence. But according to Mr. Mohamedbhai, when directed at an accomplished African-American woman, we should stifle our outrage because his client was simply exercising his right to free speech and besides, Representative Fields was only taking offense for political gain. 

What drives these distinctions for Mr. Mohamedbhai, I wonder.  Could it be misogyny—i.e., men can hurl cruel epithets at women, but women cannot use terms like “jihad”?  Could Representative Fields’ status as a public figure make her an acceptable target of the N-word and the C-word, but using the term “jihad” in a public hearing is unacceptable, hateful anti-Islamic rhetoric? Could money account for these seemingly inconsistent positions?  After all, plaintiff-side trial lawyers like Mr. Mohamedbhai and the CTLA he represents stand to benefit most from the passage of HB-1136; likewise, Mr. Mohamendbhai stands to profit financially by minimizing Mr. Sain’s cruel epithets, even to the point of criticizing Representative Fields for taking offense and expressing concern for her own safety. 

As Mr. Mohamedbhai surely realizes, taking offense pays. In the employment context, taking offense enables employees to attribute terminations not to poor performance or conduct, but rather to their protected characteristics.  Taking offense enables Mr. Mohamedbhai and other trial lawyers to fashion discrimination allegations from difficult personnel decisions, and cook up claims that generate large contingent fees. Taking offense also enables Mr. Mohamedbhai to chalk up my substantive concerns about HB-1136 to “anti-Islamic” animus.  Where taking offense pays, reasonableness takes a back seat.

But reasonableness (not rhetoric)  is exactly what we need to address the inherently complex issues surrounding workplace inclusiveness.  The slow pace of progress toward inclusiveness should trouble conscientious legislators and inspire them to take action.  Instead of relying on remedies that have not proven terribly effective at eradicating discrimination or promoting inclusiveness, we must challenge ourselves and our legislators to develop innovative solutions toward ensuring that our workplaces are as inclusive as our communities.  The BUSINESS case for workplace inclusiveness—i.e., fully inclusive decision-making enables businesses to make products MORE people buy and deliver services that meet MORE people’s needs—is incredibly compelling, and can change hearts and minds where increased regulation and litigation have failed.