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How to Use ‘Coded’ Language as Evidence in an Employment Discrimination Case

Discrimination in the workplace often isn't overt, with biased attitudes sometimes hidden behind "coded language." This subtle use of language—phrases that imply discrimination without directly stating it—can create an unwelcoming environment for employees and reflect underlying bias in employment practices. Recognizing coded language and using it as evidence can play a crucial role in proving an employment discrimination case. In this article, we’ll explore what coded language looks like, provide examples, and offer guidance on gathering evidence to strengthen your case.

Understanding Coded Language in the Workplace

Coded language is a way of communicating bias or discrimination indirectly. Often used in hiring practices, performance evaluations, or everyday interactions, coded language can imply race, gender, age, or other biases without directly stating discriminatory intent. This subtle discrimination can significantly impact employees’ experiences, career growth, and morale.

While coded language may seem harmless on the surface, courts have increasingly recognized it as a form of discrimination when patterns emerge, especially in hiring, promotions, or performance reviews.

Examples of Coded Language in Employment Discrimination

Coded language can take many forms depending on the bias it reflects. Here are some common examples:

“Not a Good Fit” or “Cultural Fit”
This phrase can be used to subtly exclude candidates based on race, gender, or age, particularly if they don’t align with the majority demographic within a company. Often, “cultural fit” is a vague term that can hide discriminatory hiring or promotion practices.
“Energetic” or “Young and Dynamic”
These terms may be used to imply a preference for younger candidates, which can discourage older applicants and reflect age bias in hiring practices.
“Too Aggressive” or “Overly Direct”
These terms are frequently applied in performance reviews for women or minority employees, particularly in leadership positions. When women or people of color exhibit assertive behavior, they may be labeled as “aggressive,” while similar behavior might be encouraged or praised in others.
“Overqualified”
Often used to reject older applicants or those from minority backgrounds, this phrase can imply age discrimination. Employers may label applicants as overqualified to avoid admitting bias against age or experience level.
“Lacks Polish” or “Professionalism”
These terms are sometimes used to imply racial or cultural bias, particularly when discussing personal style, speech, or mannerisms. If not applied consistently, it can reveal an employer’s bias against people from certain racial or cultural backgrounds.

Gathering Evidence of Coded Language

If you believe coded language is being used as a form of discrimination in your workplace, it’s essential to gather evidence. Here’s how to build a strong case:

Document Each Incident
Keep a detailed record of every instance where coded language is used, noting the date, time, context, and who was involved. Include quotes whenever possible, as these details can provide clarity on how the language was used and its potential impact.
Collect Emails and Written Communication
Many instances of coded language may appear in emails, performance reviews, or other forms of written communication. Save copies of any documents that contain questionable language. For example, if a performance review includes terms like “not a good fit” without specific examples of performance issues, it could suggest bias.
Identify Patterns and Context
Coded language alone may not prove discrimination, but when a pattern emerges, it becomes compelling evidence. For instance, if several minority employees receive feedback describing them as “too direct,” while others are praised for assertiveness, this pattern could indicate racial or gender bias.
Gather Witness Statements
If coworkers have observed similar behavior or received similar feedback, their statements can strengthen your case. Witnesses who can attest to a pattern of biased language provide credibility and help build a comprehensive picture of discrimination in the workplace.
Keep Track of Other Discriminatory Practices
Often, coded language is part of a broader discriminatory pattern. Track any instances where you feel you’ve been denied opportunities, promotions, or assignments without clear justification. If there are multiple signs of bias, coded language is likely to be more persuasive as evidence of discrimination.

Legal Steps to Take When Coded Language is Used as Discrimination

Once you have gathered sufficient evidence, it’s essential to understand the legal options available. Here are steps you can take:

Consult an Employment Discrimination Attorney
An experienced attorney can help evaluate your evidence and assess whether coded language is sufficient for a discrimination claim. Legal counsel will also guide you on the next steps, such as filing a formal complaint with the Equal Employment Opportunity Commission (EEOC) or a state agency.
File a Formal Complaint
If you decide to file a complaint, your attorney can assist in presenting your evidence to the EEOC or a relevant state agency. The EEOC investigates discrimination complaints and can provide a legal basis for further action if they determine there is cause.
Prepare for Mediation or Legal Proceedings
If your case goes forward, coded language can play a crucial role in demonstrating bias in mediation or court. Courts recognize coded language as evidence, especially when supported by a pattern of discriminatory practices, so having a comprehensive record can significantly impact your case’s success.

Conclusion

Coded language can be a powerful indicator of bias in the workplace, reflecting underlying discrimination in hiring, performance evaluations, and promotions. By recognizing, documenting, and addressing coded language, employees can take an active role in protecting themselves against subtle but harmful biases. Seeking legal guidance to present coded language as evidence in a discrimination claim can further strengthen your case, ensuring your rights are protected.

At John J. Zidziunas & Associates, LLC, our employment discrimination lawyers represent employees that have been harmed in New Jersey and Manhattan, Brooklyn, Queens, the Bronx, Staten Island, Nassau County, or Suffolk County workplaces. For more information on how to address coded language discrimination and protect your rights, call us at (212) 516-1868 or contact us here. We represent workers on a contingency fee basis with free consultations. We also defend employers being sued for frivolous and non-legitimate claims.

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