Legal liability can be found if the comment or joke is severe.
A company faced legal liability based on a worker’s claim that his supervisor once publicly referred to him using a racial epithet was enough to support his claim that he was subjected to racial bias, according to a recent federal appeals court ruling.
The plaintiff, Anthony J. Woods, sued his former employer, French Market Corporation, claiming violations of several federal civil rights laws. The court threw out most of the claims.
However, the U.S. Court of Appeals for the Fifth Circuit (5th Cir) reinstated the plaintiff’s allegation. His former employer, it was determined, violated federal law by subjecting him to a hostile work environment.
The New Orleans-based company owners did not respond to a request for comment.
Racial slur results in legal liability
Woods alleged that his supervisor referred to him using a racial slur in front of other workers.
The trial court dismissed the claim. The court noted, that a single use of a racial epithet, even though the term is “despicable,” does not support a claim of a hostile work environment. The appeals court disagreed.
The 5th Cir. noted that some have described the N-word as “probably the most offensive word in English.” The court said, if sufficiently severe, a single incident can give rise to a viable Title VII claim.
The appeals court pointed out that other courts have recognized that, “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 the N-word by a supervisor in the presence of his subordinates.”
The court concluded that the alleged public use of the racial slur resulted in an actionable claim of a hostile work environment.
The appeals court also noted that the plaintiff could be entitled to receive damages for emotional pain and mental anguish if his allegation is supported by adequate proof.
A single act is enough for legal liability
Race-based harassment that is “severe or prevalent enough to alter the conditions of a worker’s employment” is actionable under Title VII, according to the U.S. Equal Employment Opportunity Commission (EEOC).
There is a movement toward more courts being open to the idea that very few or a single incident may form the basis for a hostile work environment claim
According to the federal agency, the following are generally not enough to prevail in a lawsuit:
- Isolated incidents, unless extremely serious
- Petty slights
However, courts have shown a willingness to find harassment after a single event in recent years.
“There is a movement toward more courts being open to the idea that very few or a single incident may form the basis for a hostile work environment claim,” Florida-based employment law attorney David Miklas said in an interview.
“For many years, courts used a standard when reviewing hostile work environment cases where the conduct had to be either sufficiently severe or pervasive,” he said. “It’s an either/or test. The’ pervasiveness’ standard will be used to analyze minor isolated comments that were not severe. Generally, under that standard, the alleged misconduct had to be repetitive.”
However, Miklas mentioned that over the last 5 to 10 years, he’s noticed that the courts seem to be considering extremely offensive terms to be adequate for finding liability under the severity standard. Particularly when it comes to race and national origin discrimination cases.
And “it’s usually in cases where the manager directs an extremely offensive term at a subordinate employee. This is not just an offhand comment,” he said.
He suggested that the change could stem from the influence of the “Black Lives Matter” and “MeToo” movements.
Of course, he noted, alleged instances of bias must be examined on a “case-by-case” basis.
Train managers and supervisors
Miklas said that employers can minimize liability by providing training to all employees, including managers and supervisors.
“It’s crucial that businesses and HR train their managers because it’s usually the managers who are doing this. HR usually goes to various training sessions, and they know what should not happen,” he said.
“The problem is that the managers rarely go to any trainings, and they’re the ones making offhand comments and ‘joking’,” he continued, “but a single comment of a highly offensive nature can create a hostile work environment.”
Miklas pointed out that sensitivity training probably won’t change a worker’s personal beliefs. Still, it should keep them from saying such things in the workplace. And in work-related environments that subject employers to legal liability.
A hostile work environment can extend outside the workplace
Employers can face legal liability for instances that occur in a work-related environment, Miklas reminded.
He mentioned a hypothetical example. “A group of workers go to a seminar and then to a restaurant after the seminar. The employer expects the employees to attend both events. Employees make jokes that are racial, gender, or national origin in nature. As a result, because employees are expected to attend the events, an argument can be made that a hostile work environment has been created,” he said.
Holiday and seasonal parties can be a setting for work-related hostile environment bias claims.
He described a lawsuit where a Texas-based employer gave awards at a holiday party. During the event, one African American employee was given an award for the “Least Likely to be Seen in the Dark.” The EEOC sued the employer for race and color bias.
Employers often try to defend against such lawsuits by claiming that the comments were isolated and offhand. “The problem is that legal liability can be found if the comment is severe,” he said.
In instances where a single yet severely offensive comment or joke has been made, these court rulings, and several others, confirm that under federal and, in some cases, state workplace discrimination laws, employers can be held liable for a hostile work environment.