Why it matters
Reversing summary judgment in favor of an employer, the Tenth Circuit Court of Appeals instructed courts to focus on the "polluting effect on the workplace environment" of allegedly discriminatory conduct and not the intent behind it. The only African-American employee in her office, the plaintiff claimed that during her yearlong tenure she was subject to racial harassment in the form of comments such as a coworker who stated "we need to bring back lynching," her supervisor instructing her to "get ghetto," and use of the "n word" by multiple employees. When she was fired for excessive absences, the worker sued. A federal court judge dismissed her hostile work environment claims but the federal appellate panel reversed, finding that the lower court incorrectly focused on the intent of the speakers and whether they meant to cause harm. The appropriate inquiry was whether a jury could find the effect of the alleged harassment resulted in a hostile work environment, the Tenth Circuit said, reinstating the employee's claim.
Shawron Lounds began working at Lincare, a nationwide provider of at-home medical services, at a satellite facility in Wichita in September 2011 as a customer service representative. She was the only African-American employee at the location.
Lounds reported that she suffered a hostile work environment because of her race from the beginning of her employment, when her supervisor asked if her name was "Shaquita" and told coworkers, "I thought your name was Shaniqua!" When an unhappy customer called into the office, the supervisor instructed Lounds to give the customer attitude and "get ghetto" with him.
On another occasion, a group of employees were discussing an African-American man who had killed his wife. One coworker stated, "[W]e need to bring back lynching, because we have enough trees," clarifying to Lounds that he was "not racist" and was not trying to offend her. When she objected, he told her not to be so sensitive.
Other instances cited by Lounds included a different coworker entering the office calling out "Boom, Nigga!" after she said she had just come back from the "hood" visiting a patient and her supervisor instructing the employees to address a company vice president visiting the Wichita office by saying, "Yes, massa."
Lounds reported the incidents and her supervisor and two coworkers were written up and provided with additional human resources training. But Lounds said the racial comments continued, with the supervisor asking her why African-American parents choose names like "Roshonda" and "Shawron" for their children and a comment from a visiting customer on a picture of a garden that it "probably took a lot of slaves" to make the garden look good, although "nowadays it's wetbacks that do that." She also complained that coworkers now warned of her presence and cautioned each other about speaking in front of her.
During this time, Lounds had several unexcused absences and received a documented counseling, a verbal warning, and a final warning about her excessive absenteeism and how she violated company policy by texting in her absences. Although first-year employees at Lincare are entitled to five vacation days, by the time she was terminated in September 2012, Lounds had missed 34 days of work, more than 20 of which were unscheduled.
Lounds filed suit under Title VII alleging that she was subject to a hostile work environment and that Lincare retaliated against her after she reported the inappropriate racial comments by terminating her. A federal district court judge granted summary judgment for the employer.
On appeal, the Tenth Circuit Court of Appeals affirmed dismissal of the retaliation claim but reversed on the hostile work environment claim, writing that the lower court reached the wrong outcome by relying on an improper analysis.
Instead of focusing on the intent of the speakers—noting that the coworker speaking about lynching told Lounds he wasn't trying to offend her, for example—the district court should have examined the effect of such comments on the workplace, the panel said.
The lower court "discounted the offensiveness of key elements of the conduct based on its conclusions regarding the ostensibly benign intent of the alleged harassing actors," the federal appellate panel wrote. "A district court's assessment on summary judgment of whether a workplace environment is sufficiently polluted for purposes of a Section 1981 claim should not be based on whether an alleged harasser possessed the motivation or intent to cause discriminatory harm or offense."
Construing the facts in the light most favorable to Lounds, the term "nigga" was repeatedly uttered at Lincare within her earshot. While the district court wrote that the term was not used for the purpose of offending the plaintiff and not made directly to her, "whether the alleged harasser's purpose or intent was to do harm … is legally immaterial," the Tenth Circuit said. "The important question is whether the repeated utterance of this term had the effect of contributing to the creation of a racially hostile work environment."
By improperly focusing on the harasser's motivation, "the district court mitigated the environmental effect of what historically has been a powerfully potent discriminatory race-based term." For a second example, the panel referenced the coworker's comments about lynching, where the district court noted the speaker's comment that he was not trying to offend Lounds. Again, this perspective resulted in an undue minimization of the significance of the harassing conduct in the pervasiveness inquiry, the court said.
"In the end, the district court committed legal error by focusing on whether the alleged harassers intended to be offensive or to cause harm – especially to Ms. Lounds – rather than on whether a reasonable jury could find on this record that the subjective and objective effect of their conduct was to pollute the environment with harassing conduct that was … racially humiliating, offensive, or insulting," the Tenth Circuit wrote. "This legal error was bolstered by the court's not infrequent disregard for the legal directive on summary judgment to construe the facts in the light most favorable to Ms. Lounds."
Affirming dismissal of the plaintiff's retaliation claims, the court said Lincare clearly informed employees that attendance is vital to its business model and strongly disfavored absenteeism. Further, the company communicated to Lounds its position that her absences and texting practices were unacceptable, and she failed to provide any evidence to support the contention that the company enforced the disciplinary policy against her as a pretext.
To read the opinion in Lounds v. Lincare, Inc., click here.