Affirming a decision by the MCAD, the Massachusetts Appeals Court held that a single racial epithet could support an actionable discrimination claim under Chapter 151B, where the remark was “so powerfully offensive” that it caused injury “by its very utterance.”
In Augis Corporation v. Massachusetts Commission Against Discrimination, an African-American employee alleged that during an argument, his supervisor used a racial slur, calling him a “f***g n***r.” The employee also alleged that his supervisor treated him differently than other employees and terminated his employment because of his race. In support of his discriminatory termination claim, the employee relied solely on the supervisor’s slur. He did not allege that he suffered any other harassment and did not base his claim on a racially hostile work environment.
After a hearing, the MCAD determined that the employee’s termination was lawful and that he had not been subject to disparate treatment. The MCAD nevertheless concluded that the supervisor’s use of this particular racial slur on one occasion constituted racial harassment. Thus, the MCAD awarded damages to the employee, including emotional distress.
Augis appealed the decision, contending that the MCAD had awarded damages against the company for a form of discriminatory conduct—namely, racial harassment—which the employee had never charged. Augis asserted that the employee’s MCAD charge was limited to a claim of wrongful termination, and on that claim, it had prevailed. In the absence of any other claims, Augis argued, the single racial slur could not form the basis for liability. The Appeals Court disagreed.
The Court examined the entire record (rather than just the MCAD charge) and found that the employee had sufficiently established that he was singled out for harsh treatment because of his race. Although the employee never made an express claim for harassment or hostile work environment, the Court ruled that the award was proper because the supervisor’s slur had always been a “central component” of the overall claim. Rejecting any distinction between “harassment” and “discrimination” claims, the Appeals Court held that one incident—here, the supervisor’s use of a racial slur on a single occasion—may be sufficient to constitute liability under Chapter 151B. The Court stated: “‘Actionable job discrimination’ has no irreducible quantitative requirement that allows supervisors, for example, one free racial slur. Instead, ‘the more offensive the comments the fewer incidents of harassment may be required to demonstrate the objective reasonableness of the [discrimination] claim.’” In sum, the Appeals Court held that “a supervisor who calls a black subordinate a f***g n***r has engaged in conduct so powerfully offensive that the MCAD can properly base liability on a single instance.”
The Augis decision reminds employers that even an isolated incident, such as one repugnant remark, if exceedingly offensive, can result in liability for discrimination.