From a legal point of view, Richards probably should not have to pay his victims money damages for his racist tirade. I am talking about their legal right to recover money damages here and not whether Richards' conduct was wrong or whether his words injured his victims. I think it is safe to assume that his conduct was wrong and harmful. However, conduct can be wrong and harmful but still not be actionable, which means money damages can be awarded by a court because of it.
As a general rule, words, no matter how hateful, are not actionable. There are plenty of exceptions, but none that I think apply here. For example, words that harm reputation are actionable in defamation. As another example, words that create a racially hostile environment may be actionable, assuming that they are sufficiently severe or pervasive, are uttered by a supervisor or are ignored despite a complaint to the company. However, one stranger shouting the "n" word at another outside of the employment relationship is probably not actionable.
The closest legal basis for compensation for the victims of Richards' tirade is a theory similar to a racially hostile environment at work, which is a racially hostile environment at a "public accommodation." A public accommodation describes places that serve the public, like restaurants, hotels, hospitals, theaters and comedy clubs. In other words, a comedy club could be sued if it excluded patrons on the basis of their race or created a racially hostile environment.
Richards, however, is not a public accommodation. He was the act. Unless the Laugh Factory knew in advance about his antics or asked him later for an encore performance, it will be difficult to pin the blame on the club (the public accommodation) for the offense caused by a guy hired for an act.
Hence I was grateful to read Lisa Bloom's column. Ms. Bloom writes for Court TV. Her mom represents Richards' victims, a fact Ms. Bloom fully disclosed. Ms. Bloom believes that Richards' victims could convince a jury that they suffered severe emotional distress as a result of Richards' outrageous actions. If so, the jury could award them money damages.
I liked Bloom's column. I found it informative and readable and recommend it to anyone interested in whether the law would support an award of damages. I will leave it up to you whether you agree with Ms. Bloom's conclusion. Personally, I suspect that his victims have not suffered emotional distress severe enough to be actionable. I do not know that. Nor am I saying that Richards' actions could not cause a severe emotional reaction. I am just saying that actionable emotional distress has to be so severe that it is debilitating, which is often an impossible standard to meet.
If I am right, however, then the next question is whether the law should change to make conduct like that of Michael Richards actionable. Your thoughts?
