In order for there to be a case of workplace harassment, it “must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” However, “petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality.” Typically, for the conduct to be sufficiently pervasive to meet the criteria there must be more than just an isolated incident. Put another way, the use of a single racial slur is usually not enough. However, a recent case in the Third Circuit held that a single racial slur was sufficiently severe to be actionable.
A claim of severe racial harassment
Two African-American men were working as general laborers on a pipeline project for an energy company. The men were working to remove a fence when one of the supervisors told them that if they had “nigger-rigged” the fence (meaning in a shoddy manner), they would be fired. The comment was made in the presence of other non-African-American workers. When the two employees reported the racially offensive comment, they were soon after terminated.
Discrimination lawsuit was dismissed by the trial court
Following their termination, the two employees filed a lawsuit for racial discrimination and harassment and retaliation. The federal district court dismissed the case holding that the alleged statement was essentially a one-time use of the N-word which could not meet the hurdle of being “pervasive and regular.”
How courts typically determine severe or pervasive harassment
The first thing to remember is that this determination is made on a case-by-case basis because every situation is different. The following factors are considered, though none of them alone is dispositive, and not all of them are required:
- the frequency of the unwelcome discriminatory conduct;
- the severity of the conduct;
- whether the conduct was physically threatening or humiliating, or a mere offensive utterance;
- whether the conduct unreasonably interfered with work performance;
- the effect on the employee’s psychological well-being;
- and whether the harasser was a superior within the organization.
The appellate court disagreed with dismissing the claims
The two African-American employees appealed the lower court’s decision and the Third Circuit Court of Appeals reversed the dismissal. The appellate court’s reasoning was that a workplace harassment case does not have to involve pervasive harassment, meaning numerous statements over a period of time. Instead, a claim of workplace harassment can be successful if the conduct was severe enough.
The court found that, based on the context surrounding the use of the single racial slur, it was sufficiently severe. Considering the fact that the supervisor used the N-word in the
presence of non-African-American workers in “the same breath” as threats of termination, the conduct was severe enough to create an actionable hostile work environment.
Third Circuit holding conforms to other court rulings
The Third Circuit holding, in this case, conforms with the D.C. Circuit, the Fourth Circuit, and the Seventh Circuit, which have all held that certain isolated racial slurs, depending on the circumstances, were sufficiently extreme or severe to allow the cases to proceed to trial.
If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced employment law attorneys at Wrady & Michel, LLC. You can contact us either online or by calling us at (205) 265-1880. We are here to serve you