Monday, February 1, 2021

How many N-words create a hostile work environment?

Last week, the U.S. Supreme Court was asked to answer these questions:

  1. Whether an employee's exposure to the N-word in the workplace is severe enough to send his Title VII hostile-work-environment claim to a trier of fact.
  2. Whether and in what circumstances racial epithets in the workplace are "extremely serious" incidents sufficient to create a hostile work environment under Title VII, rather than nonactionable "mere utterances."

These questions stem from Collier v. Dallas County Hosp. Dist. (5th Cir. 2020), which held that an African-American employee had failed to create a question of fact for a jury on his race-based hostile work environment claim based on his allegation that he had seen the one instance of the N-word scrawled on the wall of the hospital in which he worked (along with a pair of swastikas)

While recognizing the offensiveness of the graffiti, the appellate court affirmed the dismissal of Collier's harassment claim.
Though disturbing, the particular facts of this case … are insufficient to establish a hostile work environment under our precedent. For example, we have found that the oral utterance of the N-word and other racially derogatory terms, even in the presence of the plaintiff, may be insufficient to establish a hostile work environment. …

The conduct that Collier complains of was not physically threatening, was not directed at him (except for the nurse's comment), and did not unreasonably interfere with his work performance. In fact, Collier admitted that the graffiti interfered with his work performance by only one percent. Moreover, Collier does not argue that he felt humiliated by the graffiti, nor would the record support such an assertion. Accordingly, on the record before us, Collier's hostile-work-environment claim fails because it was not "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."

We do not yet know if the Supreme Court will take up this issue, which remains split among the various appellate circuits. Regardless of your potential liability, however, if the N-word rears its head in your workplace, you have one, and only one, appropriate response. Stop it from happening again, period. Investigate and if you can determine the responsible party, terminate. If you can't determine the responsible party, send a strong and clear message to all employees that such language and misconduct is not tolerated, and offenders will be terminated.

All employees have the right to work in an environment in which they feel safe and free from the risk of harm. That word creates the exact opposite environment, and should never be allowed. Hard stop.