The Legal Intelligencer – No Such Thing as an ‘Innocent’ Bystander: Who Should be Held Responsible for Discrimination?

People with hands over eyes and or mouth

Several college athletes are enjoying burgers and beers at the local hangout celebrating a recent victory. They are joking around and rehashing their great plays when one of the players says to the sole Black team member who scored the winning point, “Hey, we’re lucky there’s affirmative action because, without that, you wouldn’t be here to help us win. “A few players snicker nervously and avert their eyes from the Black player, who responds, “that’s not cool.” The team captain remains silent; the offending speaker is his roommate. The Black player reports the incident to the coach, who says “boys will be boys” and urges the Black player to shrug it off “for the good of the team” as they enter the playoffs. Learning that the targeted player spoke to the coach, his teammates start avoiding him in the locker room and exclude him from after-game celebrations, such as the burger bash that set this in motion.

The creative team at a fast-growing tech company is brainstorming about potential new products. These meetings are often contentious and fast-paced, with colleagues shooting down others’ ideas to move on to their own. Everyone knows you have to be tough and not take the substantive critical feedback personally. So, when one team member finds flaws in another’s suggestions, attendees expect the debate to continue focusing on the ideas and not on the person who offered it or the person who challenged it. But this time, the proponent, a white male known for being a bully, lashes out at the co-worker who questioned the idea: “Who cares what you think, you should go back to where you came from and take the China virus with you.” The colleague of Korean descent starts explaining that he was born in the United States, that his grandparents came from Korea, not China, and that the comments are highly offensive. Others in the room who identify as of-Asian descent look at one another, not knowing whether to speak up or remain silent. One white colleague immediately condemns the remarks and urges that the group adjourn so that HR can get involved. The team leader who doesn’t know how to react says, “let’s just move on.” After the meeting ends, the Asian colleagues assemble with the sole white defender to assess how to respond. The rest of the team is uncomfortable, but they don’t want to speak out for fear of repercussions.

A group of men in a retirement community meets regularly for cards and conversation over a few beers. One player is doing well that day and raking in the pot for several hands. Another player who has not fared as well that day comments to the group that “the Jew Boy” seems to be doing too well and “we all know how cheap they are.” No one says anything, and when the game breaks up, the Jewish man speaks privately to the other man telling him calmly that his comments are inappropriate. He agrees not to make that type of comment again, yet he continues to do so when the group gets together. The others present largely remain silent as the target confronts the offender more strongly each time. Most of the others feel uncomfortable, and on occasion, another person present might say, “yes, you need to stop that,” or speak to the targeted man privately to express support. The offender starts to blame the target, saying he is “thin-skinned” and “can’t take a joke.” Many of the others latch on to that explanation and start to question whether the Jewish man is “making too big a deal out of it.” After all, they like the offender and think he has a good sense of humor. Increasingly, the group sides with the person using ethnic slurs and making religious jokes. The target of these comments eventually withdraws from the group rather than having to be subjected to this while the others look on, judging him, not the offender, for creating the rift in the group.

Scenes like these play out across our country every day, with the targets of bigotry being blamed and shunned when they stand up for themselves. In these situations, the participants generally fall into four categories, the bigot, the target, the bystander and the enabler. We usually understand that the offender is a bigot relying on ignorance and fear to bully others because they believe they have power over them individually or in a group. It is their insecurity that propels them to peripheralize others to feel better about themselves. But they are not the only offenders in these situations.

The bystanders and the enablers also warrant contempt. Bystanders are those who witness the offensive conduct and know that it is wrong but stand by silently. Enablers, the real or perceived leaders in a group—the team captain or coach, the work manager or the community leader—by their inaction or overt action, support the bigot rather than the target. Enablers try to minimize the harm the bigot inflicts, saying “it is not a big deal,” justify it (“it’s just a joke”), or blame the target (“you are too thin-skinned”) as if the target did something to trigger the offensive comments or is over-reacting. This is no different than blaming the victims of assault for what they were wearing or for walking down the street alone.

As lawyers, we are often called upon to investigate these types of discriminatory incidents and to advise clients on the legal ramifications if a target asserts a claim. Putting aside credibility issues, when the events are undisputed, documented, or recorded, the rights and responsibilities of the target and the offender are generally clear. But, what is less clear is whether we can hold bystanders or enablers accountable under the law. One option is for institutions, employers and organizations to have codes of conduct to which members of a community commit to be contractually bound. Thus, even if discrimination laws don’t create a right of action against bystanders and enablers, the contract fills that gap. Being part of a community, whether it is academic, professional, civic, or otherwise, should come with a set of responsibilities and expectations that serve the best interests of the greater group.

Often, the bystanders and enablers hold themselves out as above the fray. They may be civic, political and religious leaders who have a pulpit from which they could condemn bigotry, but instead, they don’t want to risk harassment or retaliation themselves. Some may feel guilty for failing to stand up, but their fear of ostracism holds them back, so they make excuses. They don’t want the target on their backs or to “disturb the peace.” Bystanders and enablers may convince themselves that they have done nothing wrong, but that is not the case. Those who avert their eyes, remain silent, or who favor the offender must be condemned for their indifference, cowardice and hypocrisy. They know who they are, but when we see them, let’s have the courage to call them out. If people spoke out strongly against hateful words and actions, all of us would be better off. The privilege of being part of a community should come with the expectation that you will not stand by silently when witnessing bigotry but with the expectation that you will take action to put an end to it—all for the greater good.

Reprinted with permission from the September 30, 2021 issue of The Legal Intelligencer. © 2021 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.