Is a single incident enough for a hostile work environment claim? It is in the Second Circuit. In Daniel v. T&M Protection Resources, Inc., the court held that one racial epithet was sufficiently severe, by itself, to create a hostile work environment under Title VII.
Otis Daniel, a 34-year-old black male from St. Vincent and the Grenadines, was a fire safety director at a Manhattan property. T&M Protection terminated Daniel for violating an unwritten policy that prohibited receiving packages while at work. Daniel proceeded pro se, and filed suit alleging a hostile work environment and discriminatory termination, seeking monetary compensation for emotional distress and back wages. At his deposition, Daniel testified about a number of remarks made by his white supervisor which he perceived to be racially motivated and offensive, including that the property manager preferred white security personnel and comparing Daniel to a gorilla. However, he also testified to an incident in which the supervisor called him a “f****** n*****.” The district court granted summary judgment in favor of the employer, holding that Daniel’s mistreatment did not rise to the level of “severe or pervasive” harassment so as to create a hostile or abusive work environment. Furthermore, the district court held that T&M Protection’s termination of Daniel was not motivated by racial animus. Daniel appealed and the Second Circuit reversed.
The Second Circuit employed a four factor test with the following factors:
- the frequency of the discriminatory conduct;
- the severity of the conduct;
- whether the conduct is physically threatening or humiliating, or merely offensive utterance; and
- whether the conduct unreasonably interferes with an employee’s work performance.
In prior cases, the Second Circuit had required a plaintiff to show a steady barrage of serious racial comments instead of merely a few isolated incidents of racial hostility. However, the court relied on some language from a prior case, Rivera v. Rochester Genesee Regional Transportation Authority, to hold that a supervisor’s use of certain unambiguous racial epithets is likely to alter the conditions of employment and create a hostile working environment, weighing heavily in the severity factor. As such, the court vacated the judgment of the district court. Of note, the Second Circuit did not disturb the district court’s ruling on Daniel’s termination, simply addressing the hostile work environment claim.
This decision adds to the difficult task facing employers when it comes to preventing and investigating claims of hostile work environment, especially those based on race. You must provide comprehensive training to ensure a non-discriminatory work environment. Make sure everyone understands that no level of racially offensive language is acceptable. Not only will this provide you and your employees a better place to work, it will protect against litigation. While courts still take into account the totality of the circumstances when evaluating claims of discrimination, the Second Circuit has made it clear: one really bad apple does indeed spoil the bunch.