Wednesday, October 24, 2018

How many n-bombs does it take to create a hostile work environment?

Smelter v. Southern Home Care Services (11th Cir. 9/24/18) answers the question, "How many n-bombs does it take to create an unlawful hostile work environment?"

So as not to bury the lede, the answer is one.

Brenda Smelter was the only African American working in her office at Southern Home Care Services. During her two months of employment, she alleged that she endured racist statements on a daily basis by Connie Raleigh, the Office Manager, and Catherine Smallwood, a Customer Service Supervisor.

  • Smallwood called black men were "lazy" and "the scum of the earth." 
  • Smallwood said that "black women[] ha[d] babies on welfare."
  • Smallwood said that President Obama's "big ears" made him "look[] like a monkey."
  • Smallwood told Smelter that her hair made her look like a "mixed monkey" from the movie Planet of the Apes.
  • Raleigh described black people exiting a bus at a Wal-Mart store as looking like they were "chained together." 
  • Raleigh said that she wished she could "send them all back … to Africa." 

On the day of Smelter's termination, she and Smallwood engaged in a verbal altercation over a schedule change, which ended when Smallwood allegedly "jumped up … in a rage" and said "get out of my office … you dumb black nigger."

The court of appeals reversed the district court's dismissal of Smelter's hostile work environment claim. It held that a the "two months during which Smelter had endured racist comments on a daily basis" was sufficient to create a jury issue over the existence of hostile work environment. "The … comments Smelter endured in the office involved obvious racial slurs conveying highly offensive derogatory stereotypes of black people."

Yet, Smallwood's lone use of the n-word, directed at Smelter, in and of itself and without more, would have sufficed:

A reasonable jury could conclude that the harassment was severe. Most severe of all and addressed directly to Smelter herself was Smallwood's calling her a "dumb black nigger." Implicitly acknowledging the egregiousness of this epithet, Southern Home argues that Smallwood's "one-time use" of it was insufficient to establish severity as a matter of law. We strongly disagree. This Court has observed that the use of this word is particularly egregious when directed toward a person in an offensive or humiliating manner. Here, Smallwood did not simply use the epithet in Smelter's presence; instead, she directed it at Smelter as a means of insulting her in the midst of an argument.

Smelter demonstrates misconduct that no employee should endure, and no employer should tolerate, period.