Can One Swastika Create A Hostile Work Environment For An Auschwitz Survivor? 

How many times must an employee endure a crude and offensive racial or other epithet for the situation to become a hostile work environment?

Grunge cracked Star of davidSexual or racial harassment must be “pervasive or severe” to constitute a hostile work environment. A couple of isolated incidents or comments do not qualify unless they are extremely “severe.”

But just how severe is “severe?”

The title of this post is just a hypothetical (I hope) which I have used before as a thought experiment: if you were a (rare) survivor of the Auschwitz death camp, would one swastika spray painted in your workplace be enough to create a hostile environment for you? Or one “Hitler” scrawled on your work locker?   

No? How about two? OK — how many, then?

These may be hypotheticals, but the underlying issue is all too real for people of color. It seems that racial harassment cases always have the same racial slurs and tropes: either the N-word, a noose, or both. Always. Although KKK hoods are becoming popular these days

So how many N-words or nooses make up a “serious” case of racial harassment? How many KKK hoods? 

Racial Slurs And N-Words

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A couple of recent cases discuss the issue of how many times an employee must endure a crude and offensive racial or other epithet for the situation to become a hostile work environment.

One company settled for $35,000 after the EEOC accused a white foreman and co-workers of subjecting an African-American employee to almost two years of “daily or almost daily use of the ‘N-word’ and other racial epithets, as well as racial jokes about blacks. On more than one occasion, [he] was threatened physically by one of the co-workers who engaged in racist name calling.”

To make matters worse, the company EEO officer was alleged to have actually witnessed at least one of these incidents — but did nothing.

In a second case, an African-American employee’s coworkers allegedly used a KKK-type white hood “to intimidate, ridicule, and insult him,” but he was told by management that “the incident was meant as a joke.” He was fired “for refusing to sign a declaration stating that [the company] had adequately responded to his complaint regarding the incident.” The case was settled for $120,000.

Now admittedly these cases were arguably of the “pervasive” variety — that is, the harassment occurred over a period of time.

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But what about a single N-word or noose? Is that “severe” enough by itself?

No “Magic Number Of Slurs” But One N-word Is Not Enough!

In the typical case that I’ve seen a single such slur or noose has been dismissed by courts as being insufficiently severe.  

Unbelievable.

In a 2014 decision, a black janitor alleged that his co-workers called him “boy,” and “black n….r,” and the Chicago federal appeals court stated that “[o]ne instance of conduct that is sufficiently severe may be enough,” and that 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.”

So far so good.

Then the court blew it: “However, while referring to colleagues with such disrespectful language is deplorable and has no place in the workforce [NB: the typical court disclaimer in these cases], one utterance of the n-word has not generally been held to be severe enough to rise to the level of establishing liability.”

Oh well, I guess the test for severity for this court was more quantitative then qualitative, but one has to ask if there a bright line — like 4 or 10 such slurs? Or is it a matter of “knowing it when you see it?”

One N-Word Is Enough!

Despite the many cases which have ruled that “once is not enough,” one federal appeals panel in Washington, DC (which included Judge Merrick Garland — remember him?) dispensed with the quantitative approach and held that a single use of the “N-word” was enough 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 ‘n***r’ by a supervisor.” … This single incident might well have been sufficient to establish a hostile work environment.”  [Ed. note: the slur in this quote and subsequent ones have been modified from their original form.]

Now that strikes me as hitting the right note. Think about the swastika and the concentration camp survivor.

But this panel is pretty much alone.

Don’t Get Your Hopes Up…

A NYC federal appeals court recently asked whether “the one-time use of the slur ‘n***er’ from a supervisor to a subordinate can, by itself, support a hostile work environment claim.”

The court answered, in a decision which it declared not to be used as precedent, that it had recently “observ[ed], in dicta” that “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘n***er’ by a supervisor in the presence of his subordinates.”

The same language used by Judge Garland’s panel!  So far so good.

But then the Court stopped short: it “decline[d] to confront the issue of whether the one-time use of the slur ‘n***er’ by a supervisor to a subordinate can, by itself, support a claim for a hostile work environment.”

Wonder what these three white judges would have made of the swastika case…

What About One Noose? Surely That’s Enough?

Umm, no.

An employee who alleged that a supervisor hung a noose in a warehouse on a single occasion lost on summary judgment. On appeal the court ruled that since he claimed “only” one such incident, he “has not shown ‘conduct [that] was sufficiently severe or pervasive to alter the conditions of [his] employment.’”

The court said that he “has not provided any evidence, other than his own conclusory allegations, that shows any racial motive behind the noose incident or that the noose was directed at him personally.”

No “racial motive?” Are they kidding? What possible reason could there have been other than racial animus? 

Takeaway

Seems to me that a single noose — or N-word, is so noxious, so egregious to an African-American, as to go well beyond being simply “severe.”

If you disagree, think how a swastika might make you feel if you had survived a death camp.


richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.