Thursday, February 11, 2010

Let your actions speak louder than your employees’ harassing words

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.

So said the 7th Circuit in Rodgers v. Western-Southern Life Ins. Co. Harassments works on a sliding scale. To be actionable, the offensive conduct creating the hostile work environment has to either be severe or pervasive. Isolated incidents are not pervasive, but can be severe, depending on the language used. A white employee dripping an “N-bomb” on a black employee can certainly satisfy severity.

How then, did the employer escape liability for workplace “N-bombs” in Hargrette v. RMI Titanium Co. (Trumbull App. 2/5/10) [pdf]? It took swift remedial action.

In 2002, Kearns allegedly called McKinnon a “nigger.” … [T]he inappropriate comment occurred during an argument between Kearns and McKinnon. The argument resulted in both Kearns and McKinnon being suspended for three days. In his deposition, McKinnon states that Kearns was not a supervisor. In addition, this remark appears to be an isolated instant. While McKinnon stated he did not get along with Kearns, it is only alleged that Kearns called McKinnon a “nigger” on this single occasion. Finally, we note that, upon being informed of the incident, management investigated the situation and reprimanded Kearns for his misconduct.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or