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New Case: A Single, Vile Slur Could Create A Hostile Work Environment Under Title VII

Yesterday, the Second Circuit Court of Appeals ruled that a supervisor allegedly calling an employee, “You f****g ni***r,” could, without more, be enough to establish a hostile work environment under Title VII.  Daniel v. T&M Protection Resources, LLC, No. 15-560-cv, 2017 WL 1476598 (2d Cir. April 25, 2017).

The Second Circuit ruled that a federal district court had failed to sufficiently review the employee’s claim of a hostile work environment and harassment.  Notably, the plaintiff represented himself, although the EEOC filed a friend of the court (amicus curiae) brief on his behalf, which undoubtedly helped his cause significantly.

Background

The employee (Daniel) filed a hostile work environment and harassment claim, saying that his employer had discriminated against him based on his race and sex.  In particular, he alleged that:

  • His supervisor created a hostile work environment by calling him, “you f****g n****r;”

    • Note: the EEOC argued in its amicus brief that this type of odious slur alone could create a hostile work environment that violates Title VII;

  • His supervisor harassed him based on Daniels’ perceived sexual orientation

The District Court granted summary judgment to the employer on these claims.  Daniels then appealed the decision to the Second Circuit.

A single, abhorrent insult may be enough to create a hostile work environment

The District Court decided that a single use of a slur could never be considered a hostile work environment.  Daniel, 2017 WL 1476598, at *1.  The District Court relied on a prior case that held:

…whether racial slurs constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs, considered cumulatively in order to obtain a realistic view of the work environment.  Id. (quoting Schwapp v. Town of Avon, 118 F.3d 106, 110-11 (2d Cir. 1997)).

The Second Circuit found that the Schwapp case did not stand for the proposition that a one-time utterance of a vile slur could never, as a matter of law, constitute a hostile work environment.  Daniel, 2017 WL 1476598, at *1.

The Second Circuit also pointed out 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 ‘nigger’ by a supervisor in the presence of his subordinates.  Id. (quoting Rivera v. Rochester Genessee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014)).

Thus, the Second Circuit ruled that—while it would not decide whether this one-time use of an “unambiguously racial epithet” created a hostile work environment—the District Court must now consider that possibility and not simply dismiss the claim outright.

Sexual harassment based on perceived sexual orientation

Daniel also claimed that his supervisor harassed him by brushing his genitalia against Daniel’s buttocks.  Likewise, his supervisor allegedly called Daniel a “homo” and told him to “Man up, be a man.”  Daniel, 2017 WL 1476598, at * 2.

The Second Circuit noted that these types of sex-related discrimination claims can be construed as sexual harassment claims.  Id. (citing Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79-80 (1998)).  The Oncale decision ruled that same sex harassment (male-on-male; female-on-female) is illegal under Title VII if the harassment occurred because of the plaintiff’s sex.

Similarly, the harassment claimed by Daniels may be illegal under Title VII if it occurred because of his failure to conform to gender norms.  Daniel, 2017 WL 1476598, at *2 (citing Anonymous v. Omnicom Grp., Inc., No. 16-748, 2017 WL 1130183, at *3-4 (2d Cir. Mar. 27, 2017)).  In particular, the supervisor’s alleged statements about Daniels being a “homo” and needing to “Man up, be a man” were properly evaluated by the District Court as sex discrimination claims.

Otherwise neutral incidents can support discrimination claim

The Second Circuit reiterated that a plaintiff in a discrimination case may use facially neutral conduct to support a harassment claim.  Specifically, when the same person “engaged in multiple acts of harassment, some overtly [based on a protected characteristic] and some not,” then all acts can be considered to decide whether illegal harassment occurred.  Daniel, 2017 WL 1476598, at *2.

In Daniel’s case, the Second Circuit decided that the following alleged neutral conduct should have been factored into the analysis of whether Daniel’s supervisor harassed him because of his race or perceived sexual orientation:

  • his supervisor’s investigation into whether Daniel’s stole a computer;

    • “’some evidentiary basis’ existed for inferring that this ‘neutral’ incident was animated by hostility because of Daniel’s race [,]” according to the Second Circuit, Daniel, 2017 WL 1476598, at *2;

  • his supervisor repeatedly watched Daniels napping and changing his clothes;

    • “This evidence should have been included in the district court’s analysis because of the overt sexual harassment Daniel experienced from his supervisor,” the Second Circuit ruled.

What number and types of incidents constitute a hostile work environment?

Finally, the Second Circuit overruled the District Court’s decision that Daniel had failed to allege sufficient incidents of harassment to support a hostile work environment claim.

The Supreme Court provides that whether a work environment is hostile or abusive must be reviewed by “looking at all the circumstances” of the environment, which includes:

  • the frequency of the discriminatory conduct;

  • the severity of the conduct;

  • whether it is physically threatening or humiliating, or a mere offensive utterance;

  • whether it unreasonably interferes with an employee’s work performance

See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).

The Second Circuit found that Daniel identified about 20 incidents of harassment during his relatively short (15 months) time on the job.  And at least two of these incidents were severe (Daniel’s supervisor calling him a “nigger;” the supervisor brushing his genitalia against Daniel’s buttocks), according to the Second Circuit.

Reviewing “all the circumstances,” the Second Circuit held that Daniel’s alleged harassment “could be found to ‘alter the conditions of [his] employment and create an abusive work environment’ in violation of Title VII.”  Daniel, 2017 WL 1476598, at *3 (quoting Oncale, 523 U.S. at 78).

Key takeaways

When considering whether you may be working in a hostile work environment, remember:

  • It’s not enough for the comments or behavior to be simply rude or offensive; there must be severe or pervasive statements or actions that are based on your race, sex, national origin, or other protected characteristic;

  • The use of incendiary racist/sexist comments can create a hostile work environment even if they are said only once;

  • Physical touching/harassment, as opposed to verbal statements, is often viewed by courts as stronger evidence under the the “severe or pervasive” test;

  • Discriminatory statements of actions by your supervisor—as compared to your subordinate or co-worker—can also make for a stronger case; and

  • You can be the victim of illegal sexual orientation/gender stereotyping discrimination even if your employer simply thinks (but does not know) that you are lesbian, gay, bisexual, or transgender.

© 2018 Zuckerman Law

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About this Author

Eric Bachman, Discrimination Attorney, Zuckerman Law Firm
Of Counsel

Eric Bachman is Chair of the Discrimination and Retaliation practices at Zuckerman Law and has served in senior positions at the U.S. Office of Special Counsel (OSC) and the Department of Justice Civil Rights Division.  Bachman’s wins include a $100 million settlement in a disparate impact Title VII class action, a record-setting Whistleblower Protection Act settlement at OSC, and a $16 million class action settlement against a major grocery chain.  Bachman holds extensive litigation experience, including trials in federal and state courts, and has also set important...

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