Seyfarth Synopsis: Telling African-American employees “that if they had ‘n—– rigged’ the fence, they would be fired” may be enough, standing alone, to state a hostile work environment claim. The Third Circuit clarifies that “severe or pervasive” discrimination is the correct standard for hostile work environment claims.
The Third Circuit recently held that a single word or incident, if severe enough, may create an actionable hostile work environment claim. The Court clarified that in hostile work environment cases, the proper legal standard is not whether the objectionable conduct in question is “pervasive and regular,” but rather whether it is “severe or pervasive.”
The plaintiffs in Castleberry v. STI Group, both African-American men, are pipeline workers who worked for defendants as general laborers on an all-white crew. In their complaint, they alleged that despite having more experience than their white counterparts, the plaintiffs were assigned to clean around the pipelines, but were not permitted to work directly on them. Moreover, on multiple occasions, a colleague anonymously wrote “don’t be black on the right of way” on the pipeline workers’ daily sign-in sheets. The plaintiffs alleged that after working on a fence removal project, a supervisor told them “that if they had ‘n—– rigged’ the fence, they would be fired.” They reported this final incident, and were terminated two weeks later without explanation. The complaint alleged that although they were briefly rehired, the defendants’ terminated their employment a second time, claiming a “lack of work.”
The plaintiffs subsequently brought harassment, discrimination, and retaliation claims against the defendants. At the outset of the case, the defendants moved to dismiss on the grounds that a single, isolated incident could not constitute a hostile work environment. The trial court agreed, dismissing the plaintiffs’ hostile environment claims, holding that a single use of a racial slur was not “pervasive and regular” discrimination.
On appeal, the Third Circuit reversed. After acknowledging inconsistent precedent in the Circuit, the appellate court clarified that “severe or pervasive” was the correct standard for hostile work environment claims – not “pervasive and regular” or even “severe and pervasive.” The Third Circuit explained:
Indeed, the distinction means that severity and pervasiveness are alternative possibilities: 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 Third Circuit relied on U.S. Supreme Court precedent to support the “severe or pervasive” standard.
Having clarified the hostile work environment standard, the Court in Castleberry found that “it is clear that one such instance [of a supervisor using the ‘n-word’] can suffice to state a claim.” Moreover, as alleged here, the plaintiffs’ supervisor threatened to terminate their employment (and then actually did) at the same time that he used the derogatory racial epithet. Thus, the Court held that this allegation was sufficiently severe to state a hostile work environment claim.
Notably, the Court also found that the plaintiffs’ allegations could have alternatively satisfied the “pervasive” part of the clarified standard; not only did their supervisor allegedly make the racially derogatory comment, but they were also allegedly exposed to racial hostility when on several occasions their sign-in sheets bore discriminatory comments and because they were relegated to menial tasks while their white colleagues were allowed to perform more complex work.
Few words are more malicious than the “n-word,” but employers should be alert to the fact that the Third Circuit’s reasoning would logically extend to isolated discriminatory remarks about religion, gender, or any other protected classification. It is, therefore, imperative that employers maintain strong anti-discrimination policies, require and encourage employees to report discrimination, and promptly investigate and remediate any alleged discriminatory remark or other conduct, even if the allegation is of a single remark or incident.