Some time ago I analyzed court cases regarding the use of the N-word and nooses in workplace racial harassment cases. I found in my (admittedly small, but not that small) sample, that either the N-word, a nooses, or both, were used in the vast majority of such cases.
Since the federal standard for hostile workplace is “severe or pervasive” (NB. This is no longer the case, for example, in New York, which recently passed legislation easing the standard for such a claim), I wanted to see how many times an African-American employee had to endure the sight of a hanging noose, or suffer the slur of the N-word for the situation to become a court-recognized hostile work environment.
Put another way, was one time severe enough, or did it have to happen many more times so as to be “pervasive?” Is one “N-word” sufficiently serious? One noose? Or must there be many…
Well, I found that most courts held that once was not enough! One noose was not enough to be considered a hostile work environment! That was pretty shocking to me, and therefore I wondered whether a survivor of Auschwitz faced with a swastika on his locker (not hypothetical, unfortunately) might have faced a hostile work environment.
In that EEOC case which settled for $250,000, “it seems that a white manager harassed a Filipino-American laborer who was employed by a North Dakota oilfield service company – using as foul and racist language as I’ve seen – at least in a while. … According to the EEOC, shortly after he began working, the employee “was harassed by a white manager because of his race and national origin. The harassment included the manager calling Clark a “non-white m—-f—-r,” “non-white guy,” “spic,” “n—-r,” “monkey” and “ape.” On one occasion, the manager urinated on Clark’s legs as he worked under a truck in the shop.”
Just as I was about to publish this post, the EEOC announced that it had sued a large California corporation for racial harassment of African American workers, alleging that it “tolerated”
“racist graffiti of swastikas and racial epithets drawn on the walls of the portable toilets at the Apple Park construction project, as well as a noose hung at the worksite with a scrawled note containing use of the racial insults, other expletives, and a threat of lynching. In addition, the company failed to act when notified by two African American employees that a white coworker had taunted them with a racial slur and called one of them ‘boy.’”
So this analysis is, unfortunately, very timely, and it came to mind based upon a recent decision from a federal appeals court that supports my conclusion. But first some background.
Originally, I wrote about a federal court which in 2014 dealt with a black janitor who claimed that he was subjected to race-based harassment by co-workers who called him “boy,” “black n—-r,” and treated him harshly. The Court held that his “hostile work environment claim fails because he did not provide sufficient evidence for a reasonable juror to conclude that he was subjected to harassing conduct that was severe or pervasive.”
The Court did, however, note that “[o]ne instance of conduct that is sufficiently severe may be enough,” and that “[w]e have stated that while there is no ‘magic number of slurs’ that indicates a hostile work environment, an “unambiguously racial epithet falls on the ‘more severe’ end of the spectrum.”
Wow, again. So “black n—-r” is not so unambiguously a racial epithet the single use of which is not considered “severe.”
One N-Word Is Enough! Its So Deeply Offensive!
Despite the cases which have held that “once is not enough,” I wrote about a 2013 decision from a federal appeals court in Washington, DC (of which Judge Merrick Garland was on the panel) which held that a single use of the “N-word” was enough to make out a hostile work environment because it is so “deeply offensive.”
The Court held that: “As other courts have observed, ‘perhaps no single act can more quickly alter the conditions of employment’ than ‘the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor.” … This single incident might well have been sufficient to establish a hostile work environment.”
New Case: “Stupid Ass N *****”
In the recent case, plaintiff was fired for alleged performance reasons, but claimed that he had been retaliated against because he had complained many times about his alleged mistreatment. He claimed that on one occasion his boss called him a “stupid ass n*****.”
The federal 7th Circuit Court of Appeals dismissed his hostile work environment claim on the ground that plaintiff only “describes one incident,” which, while it “plainly constitutes race-based harassment” and that “[t]he n-word is an egregious racial epithet,” nonetheless:
“[plaintiff] can’t win simply by proving that the word was uttered. He must also demonstrate that [his boss’s] use of this word altered the conditions of his employment and created a hostile or abusive working environment. … And he must make this showing ‘from both a subjective and an objective point of view.’
In other words, he must show not only that a reasonable person would find the workplace hostile or abusive as a result of [his boss’s] slur, but also that he himself perceived it that way. … Put differently, [plaintiff] has to be able to persuade a jury that [his boss’s] race-based harassment was severe enough “to alter the conditions of [his] employment.”
And, the Court noted, “We need not address the objective prong of the analysis, because Smith falters on the subjective prong. He introduced no evidence that Colbert’s use of the n-word changed his subjective experience of the workplace.”
So, what’s the relevant takeaway? This Court will not uphold a claim of the single use of one N-word without more.