Wednesday, June 29, 2011

“Despicable” does not always equal “severe or pervasive” in a racial harassment claim

In Williams v. CSX Transp. Co. (6/28/11) [pdf], the 6th Circuit upheld the dismissal of a racial harassment claim, confirming the long-standing principle that the anti-discrimination laws are not codes of workplace civility.

The harassment allegations in the lawsuit focused on a two-day period:

According to Williams, Jeff Wingo and Tim Magargle, two supervisors, were watching the Republican National Convention on television … when Williams entered and indicated she did not want to watch. Wingo allegedly told Williams that she was a Democrat only because she was a black woman; that unmarried women cannot “have the love of God in their heart[s]”; and that this country should “get rid of” Jesse Jackson and Al Sharpton because without those two “monkeys” the country “would be a whole lot better.” The following day, Williams alleges that Wingo told her that if she returned to school, she would not have to pay for her education because she was a single black mother.”

Williams also claimed that six months prior, Wingo also asked her why black people cannot name their children “stuff that people can pronounce, like John or Sue,” and told her that black people should “go back to where [they] came from.”

In upholding the trial court’s dismissal of the harassment claim, the Court distinguished between comments that are despicable and comments that are so severe or pervasive that they change the terms and conditions of one’s employment:

The statements were isolated, not pervasive: all but two occurred over a two-day period. Nor were they sufficiently “severe” for Williams to be able to prevail on a racially hostile work environment claim. Those statements—for example, calling Jesse Jackson and Al Sharpton “monkeys” and saying that black people should “go back to where [they] came from”—are certainly insensitive, ignorant, and bigoted. But they more closely resemble a “mere offensive utterance” than conduct that is “physically threatening or humiliating.”

Just because isolated statements might not subject an employer to liability does not mean they should be ignored. To the contrary, the fact that the employer in Williams ignored an anonymous call into its ethics hotline likely caused the lawsuit to be filed. Seven years and hundreds of thousands of dollars later, the employer prevailed on the racial harassment claim. I’ll let you decide which is the better course of action.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or

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