Why it matters

The single use of a racial epithet was sufficient to establish a “severe or pervasive” hostile work environment in order to bring suit, the U.S. Court of Appeals for the Third Circuit has ruled. A pair of African-American contract workers for Chesapeake Energy Corp. claimed that despite having more experience than their white coworkers, they were not permitted to work on the pipelines other than to clean them; they also found racial comments written on their sign-in sheets. The final straw was a supervisor’s use of the “n word.” Both men were fired after complaining about the use of the epithet, and they sued under Title VII. A district court granted the employer’s motion to dismiss, holding that the single use of the word was insufficient to support their lawsuit, but the federal appellate panel reversed. Clarifying that the correct standard under the statute was “severe or pervasive,” the court said the plaintiffs had “pled a plausible claim of a hostile work environment under either theory—that the harassment was ‘severe’ or ‘pervasive.’”

Detailed discussion

STI Group, a staffing placement agency, hired Atron Castleberry and John Brown as general laborers. The two African-American males were assigned to a Chesapeake Energy Corp. worksite, where they claimed they were subjected to a racially hostile work environment.

Not long after they began working at the site, they found an anonymous person had written “don’t be black on the right of way” on their sign-in sheets. Both men also alleged that although they had significant experience working on pipelines (and more than their non-African-American coworkers), they were permitted only to clean around the pipelines rather than work on them.

One day, while working on a fence removal project, a supervisor told the crew including Castleberry and Brown that if they “n*****-rigged” the fence, they would be fired. Both plaintiffs reported the offensive language to a superior and were fired two weeks later with no explanation. Although both were rehired, they were terminated again shortly after.

Castleberry and Brown then sued, alleging harassment, discrimination and retaliation in violation of Title VII. A district court judge granted the employer’s motion to dismiss, determining that the plaintiffs failed to state sufficient evidence of a discriminatory work environment.

On appeal to the U.S. Court of Appeals for the Third Circuit, the panel recognized that its precedent on the correct standard to apply to harassment claims was “inconsistent.” In some cases, the court has held that a plaintiff making a harassment claim must establish the discrimination is “pervasive and regular,” while other decisions used a standard of “severe and pervasive,” and some opinions were based on a standard of “severe or pervasive.”

“Thus we clarify,” the court said. “The correct standard is ‘severe or pervasive.’” This standard is based on precedent from the U.S. Supreme Court, the panel said, which has discussed on several occasions that “severity” and “pervasiveness” are alternative possibilities, with some harassment severe enough to contaminate an environment even if not pervasive and other, less objectionable conduct contaminating the workplace only if it is pervasive.

Under this standard, the employer argued that the supervisor’s single use of the “n word” was neither severe nor pervasive.

Citing opinions from the Fourth, Seventh, Eleventh and D.C. Circuits, the panel determined “it is clear that one such instance can suffice to state a claim.”

“Here Plaintiffs alleged that their supervisor used a racially charged slur in front of them and their non-African-American coworkers,” the court wrote. “Within the same breath, the use of this word was accompanied by threats of termination (which ultimately occurred). This constitutes severe conduct that could create a hostile work environment.”

The “pervasive” alternative was also satisfied, the panel found. “Plaintiffs alleged that not only did their supervisor make the derogatory comment, but ‘on several occasions’ their sign-in sheets bore racially discriminatory comments and that they were required to do menial tasks while their white colleagues (who were less experienced) were instructed to perform more complex work,” the court said. “Plaintiffs have pled a plausible claim of a hostile work environment under either theory—that the harassment was ‘severe’ or ‘pervasive.’”

Every case relied on by the employer was resolved at summary judgment, the panel noted, reminding the defendants that claims of employment discrimination necessarily survive a motion to dismiss so long as the prima facie elements have been established.

The court also allowed the plaintiffs’ disparate treatment and retaliation claims to move forward but affirmed dismissal of their disparate impact claim, which is unavailable under Title VII.

To read the opinion in Castleberry v. STI Group, click here.