What is a “hostile work environment?”
This seemingly straightforward three-word phrase has vexed employers, in-house counsel, and HR professionals alike when dealing with employee internal grievances of discrimination and harassment. It’s easy to discipline employees engaged in repetitive discriminatory or harassing behavior in the workplace.
More troublesome for employers, however, is the single racial slur or isolated incident of harassment, which can leave HR directors in search of legal guidance.
The Equal Employment Opportunity Commission (EEOC) has defined harassment in the workplace as being any unwelcome conduct based on race, color, religion, sex, national orientation, age, sexual orientation, or disability, among other protected classes, that becomes unlawful when the harassment endured by the employee “becomes a condition of continued employment,” or “the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.”
The EEOC has further expressed that “petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality … to be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.” This seems a little more straightforward, but its application still can be tricky depending on the context and circumstances surrounding the claim of discrimination or harassment.
To make matters worse, the courts have not evenly applied these principles. Indeed, until recently, both the Second and Third Circuit Courts of Appeals had conflicting precedent on how these principles should be applied. That has changed.
“A single incident of harassment can create a hostile work environment.”
In recent months, both the Second and Third Circuit Courts of Appeals ruled that a single incident of harassment (i.e. a single racial slur) can create a hostile work environment. Thus, to the extent that employers in New York, Connecticut, Vermont, Pennsylvania, Delaware, and New Jersey may not have been paying attention to or investigating isolated incidents of harassment in the workplace, they had better be paying attention to those single utterances of harassment or racial slurs now.
These recent court rulings confirm that employers, under appropriate circumstances, may be held liable for hostile work environment harassment where a single, isolated yet severely offensive joke, epithet, threat, or insult interferes with an employee’s work conditions or performance.
The takeaway is simple and straightforward: a single incident of harassment, if severe enough, may alone establish a claim of hostile work environment. Once may be enough.
Castleberry v. STI Grp. and Racial Harassment in the Workplace
In Castleberry v. STI Grp., the United States Court of Appeals for the Third Circuit reviewed an appeal from the Middle District of Pennsylvania dismissing a claim of racial harassment on the basis that the facts pled by the plaintiffs did not support a finding that the alleged harassment was severe and pervasive.
In that case, Mr. Castleberry and another co-plaintiff were the only African-Americans laborers on a pipeline crew. They claimed that on several occasions someone had anonymously written “don’t be black on the right of way” on the sign-in sheets. They also alleged that when working on a fence-removal project, a supervisor told them, in front of their co-workers, that if they “n—-r-rigged” the fence, they would be fired.
They reported the offensive language to a superior and were fired two weeks later without explanation.
The trial court, citing precedent, dismissed the harassment claim on the basis that the harassment as alleged by the plaintiffs was not “severe and pervasive.” The Third Circuit, on review, disagreed and reversed the lower court’s ruling.
In no uncertain terms, the Third Circuit expressed: “The correct standard is ‘severe or pervasive.'” The court noted the significance of this distinction; under the “and” standard, isolated incidents cannot amount to harassment, whereas under the “or” standard, isolated incidents can create actionable harassment if the harassment is “extremely serious.”
The court explained that “some harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable, conduct will contaminate the workplace only if it is pervasive.” The court reasoned that whether one isolated incident of harassment (i.e. the use of the “n-word” by a supervisor) is adequately severe to establish a hostile work environment will be context-specific, but it is clear that under appropriate circumstances it may be enough.
Clarifying, the Third Circuit wrote: “Whether an environment is hostile requires looking at the totality of the circumstances, including: ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’
Daniel v. T&M Prot. Res., LLC on Racial Slurs in the Workplace
Similarly, in Daniel v. T&M Prot. Res., LLC, the United States Court of Appeals for the Second Circuit, citing the EEOC’s guidance, held that “whether racial slurs constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs, considered cumulatively in order to obtain a realistic view of the work environment,” and that a “one-time use of a severe racial slur could, by itself, support a hostile work environment claim when evaluated in the cumulative reality of the work environment.”
The court qualified its opinion, expressing that “isolated incidents usually will not suffice to establish a hostile work environment.” Still, the Second Circuit held that “a single episode of harassment can establish a hostile work environment if the incident is sufficiently severe,” and, citing preexisting precedent, expressed: “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet” by a supervisor in front of his subordinates.
What does all of this mean for employers?
Severe discriminatory conduct, even if not regular or pervasive, may establish a hostile work environment that is intimidating, hostile, or offensive to reasonable people under certain circumstances.
That means that employers and HR professionals must be diligent in responding to and investigating claims of harassment or discrimination, even where the grievance arises from a single, isolated occurrence. This obligation is amplified when it is a manager or supervisor harassing a subordinate, which by its nature can impute liability to the company even with appropriate remedial steps in place.
Employers should train and educate their workforce to prohibit – and not tolerate – any harassment in the workplace, even where the harassment isolated or irregular. Employers should review their anti-discrimination policies and employee handbooks to ensure that the appropriate grievance procedures, prohibitions, and policies are in place to stomp out every type of discrimination in the workplace. Otherwise, that one racial epithet or sexist comment may land employers in court.