Thursday, April 19, 2007


Should Imus have been fired for his comments that the Rutgers University Women's basketball team are a bunch of "nappy headed ho's"? As a non news event now, it is still nonetheless an issue that's worth considering. Aside from comments one might make about the racial hatred or stereotyping issue and the galvanizing power of those issues -- as seen in the Duke Lacrosse players' case -- the question to be answered here is whether Imus' conduct warrants what Justice Randall Echlin calls the capital punishment of employment law.

In Canada the governing case in just cause termination is McKinley v. BC Tel. That case held that a contextual approach is to be used in assessing workplace misconduct. While there is really nothing new in that given that courts treat each wrongful dismissal case on its own carefully considering the particular facts -- the idea that the cause must be consdidered in context is worthy of discussion. What is the context of Imus case?

Imus is a syndicated radio talk show host. He has been in the business for some thirty years. Presumably he has a large audience and the adverstising revenue generated is substantial. Advertisers are there because Imus has the ratings. I have not listened to his show, but understand that like many talk show hosts, it is his abilty to be provocative that makes him popular. He may express unpopular views, or views that aren't politically correct. He is unlikely to be interesting unless he's stepping on toes and pissing people off. That is certainly what he did when speaking about the Rutgers women's basketball team. So, in that sense, Imus was only doing exactly what he gets paid to do.

But, did he step over the line? As a professional, he surely knows that there is a line over which he cannot step. To anwer that question, an examination of what exactly was said, who else has said it, what else is being said in similar media is required. An look at the transcript of the comments shows that it wasn't Imus, but rather a producer of the show that first used the controversial word "Ho". It is of course, basketball they are talking about, the sport that pioneered trash talking. Trash talking has become a standard feature in sports. Remember Zidane's famous headbutt was incited by trash talk. Even the fans get into it -- sometimes resulting in violence between players and fans. It's a regular part of the modern sports world. Imus, as a fan, or commentator is part of that world. Moreover, he reacted to the producer's comment as is required to keep the flow of his show going -- and in the context of sports trash talk. Obviously, it's not something he put any thought into, he just responded -- in context.

Does that excuse the fact that he used the phrase "nappy headed Ho's" with both its racist and sexist overtones? Well, the answer to that also requires context. What does that phrase mean today? What is the sting of it today? What is the sting of it from Don Imus versus George Bush or Bill or Hilary Clinton or Martha Stewart? As we know, the meaning of words and phrases change over time. In one of the more amusing Canadian cases, Legere v. YWCA, the court had the opportunity to consider the evolution of the phrase "Fuck Off". While "fuck" used to be the worst of dirtiest words, today it is pretty watered down. A reading of the various blogs on the topic suggests that the phrase "nappy headed hos" is also relatively common, appearing on the street, in hip hop tunes, on videos and movies. Thus, in the context it is unlikely that the phrase has the sort of sting or shock to it, that one would say Imus was acting outside the acceptable parameters of his job and his audience.

And speaking of nappy headed, has anyone looked at Imus' hair?

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