Almost four years ago, I posted a piece asking how many how many times an African-American employee must endure the sight of a hanging noose, or suffer other crude and offensive racial or other epithets, for the situation to become a hostile work environment and racial harassment.
The question was: is one “N-word” sufficiently severe?
Under existing federal caselaw, one isolated incident of harassment is generally not enough to constitute a hostile work environment unless it is extremely serious – or “severe.” Is one “N-word” sufficiently serious? One noose?
Whenever offensive racial slurs against black employees are uttered in the workplace, it seems that the N-word is always first among the slurs. Always. And in my review of the cases, second place in the frequency of racial slurs or threats goes to hanging nooses in the workplace.
For example, just last week an Illinois fencing company agreed to settle an EEOC suit for $25,000 in which it was alleged that an African American employee suffered racial slurs and other offensive racial comments from his coworkers and manager, and after he complained, nothing was done – except that he found a noose hanging in the warehouse.
The EEOC noted that “Two coworkers pulled [him] toward the noose, telling him to put his head in it.”
No Magic Number Of Slurs
I wrote previously 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 the “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 state, however, 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.”
One N-Word Is Enough!
Despite the cases which have ruled that “once is not enough,” I wrote then 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.”
Besides the fact that the law has changed – at least in jurisdictions such as NY, where the test is no longer “pervasive or severe” – I want to add shout out to a reader, Gray McCalley, who emailed me to point out that also on that three-judge panel (besides Judge Garland) was a then relatively unknown judge – Brett Kavanaugh – who wrote a concurring opinion, in which he stated:
It may be difficult to fully catalogue the various verbal insults and epithets that by themselves could create a hostile work environment. And there may be close cases at the margins. But, in my view, being called the n-word by a supervisor – as [plaintiff] alleges happened to him – suffices by itself to establish a racially hostile work environment.