The 'N-Word': Is It Offensive Enough That A Single Utterance Creates A Hostile Workplace?

It's not clear -- but likely more than one such use is required.

In answer to the title question, I would have to say “it is not clear” — but likely more than one such use is required.

“What,” you might sputter in surprise, “one N-word is not enough? A racial epithet from which we recoil when it is even uttered?”

Usually.

Some weeks ago I wrote that “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.”

Courts, thankfully, are virtually unanimous in condemning such things.  Unfortunately, they are not so unanimous in doing anything about it.  Most courts, while shaking their heads obligatorily in professed shock, nonetheless have held that such racial slurs and tropes must occur more than once to make out a hostile workplace.

Once is somehow not enough.

Until now?

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For example, in my prior post I noted a 2014 decision where “a black janitor alleged that his co-workers called him ‘boy,’ and ‘black n….r.’” 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.”

However, the court, while (typically) “deploring” such “disrespectful language,” held that “one utterance of the n-word has not generally been held to be severe enough to rise to the level of establishing liability.”

What world do those judges live in?

I posited a short 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?”

If, as I suspect, a court would find one such swastika an actionable act, why then would a court find that a noose hanging from the locker of an African-American worker, or the N-word scrawled on it, is not racial harassment?

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What, Exactly, Constitutes A “Hostile Work Environment”?

Title VII does not explicitly prohibit workplace harassment based upon gender, race, nationality, or other protected class characteristics: it prohibits discrimination with respect to “compensation, terms, conditions, or privileges of employment,” but does not mention workplace harassment based upon any of these characteristics.

The concept of “hostile work environment” is a court-made construct established to effectuate the intent of Title VII to “level the playing field” of the workplace for people in protected classes.

The Supreme Court has held that a hostile work environment claim exists if the workplace is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

The alleged harassment must be either “severe” or “pervasive.”

As commonly understood, a single act of harassment may create a hostile work environment if it is “severe” enough. And repeated acts or acts taking place over a period of time that may not rise to being “severe” may create a “pervasive” hostile work environment.  There appears to be no bright-line test – the courts deal with each case on its facts and in context.

Most cases are of the “pervasive” kind – I guess that’s something to be thankful for, since I’ve come across cases of outright criminal assault and even murder of employees based upon a protected characteristic.

For example, in a recent case settled by the EEOC it was alleged that an Illinois company allowed “its white employees to verbally harass and threaten a black employee of Puerto Rican origin, which ultimately led to a brutal physical assault.”

“The national origin and color harassment allegedly included slurs such as ‘s..c,’ ‘n….r,’ ‘Mexican n—-r,’ and ‘wetback.’”

There was a physical assault in this case – pretty severe by any standard, but what would the court have done (if the case had not settled) if there were only the slurs?

What Is “Pervasive” Harassment?  

The pervasive variety of harassment is illustrated by a fairly recent EEOC lawsuit in which the owner of two South Carolina trucking companies was accused of subjecting numerous employees to racial harassment over the course of years: “frequent” use of the “N-word” and “derogatory comments about African-Americans, such as comments that black people cannot read and write.”

Pervasive? Sure. But because of that we don’t know if the court would have deemed these comments “severe” if uttered “only” once.

So What Is This New Development On The N-word?

I noted before that four years ago, a federal appeals panel in Washington, D.C. (which included Judge Merrick Garland) held that one utterance of the “N-word” was enough because it is so “deeply offensive.”

Unfortunately, that decision was an outlier.

But wait!

To the rescue now comes a second federal appeals court in Philly, which seems to have concretely settled the issue!

Two African-American men hired by a staffing agency alleged that they were subjected to a single use of the n-word and a verb form of it, and “[w]ithin the same breath, the use of this word was accompanied by threats of termination (which ultimately occurred).”

As a side note, the appeals court had a difficult time explaining the law: it acknowledged that “our precedent is inconsistent,” and that its prior cases held variously that the test is “pervasive and regular,” or “severe and pervasive,” “[a]nd if that were not enough, we have held that the correct standard to apply is ‘pervasive and regular’ but then applied the ‘severe or pervasive’ standard within the same opinion.”

So much for meticulously written decisions.

In any case, the court held that “Under the correct ‘severe or pervasive’ standard, the parties dispute whether the supervisor’s single use of the ‘nword’ is adequately ‘severe’ and if one isolated incident is sufficient to state a claim under that standard.  Although the resolution of that question is context-specific, it is clear that one such instance can suffice to state a claim.”

Really? Finally?

Takeaway

Okay, the court did use the term “context-specific” – but it also said “it is clear that one such instance can suffice to state a claim.”

Progress!


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.