Do you handle HR issues? Notice I didn’t ask if you are an HR practitioner. Some companies do not have an HR Department but designate someone to handle HR issues that arise. Either way, let’s assume you do handle HR issues. What would you do if an employee complained to you about a supervisor that directed a racial epithet toward him/her on two separate occasions? Let’s assume that you understand that discriminatory or harassing comments or behavior can create a hostile work environment, which you know is illegal under Title VII. Are you wondering whether just one racial slur used twice is enough to create a hostile work environment? If you are, the good news is that you’re not alone. Many employers share your question. Here’s the short answer: Yes, under the right circumstances, it can. Read on, and we’ll explore… This week, I actually have 2 real, live case examples. The first one is a New Jersey case, Rios v Meda Pharmaceutical, Inc. ___ N.J. ___ (2021).
Here, in a nutshell, is what went down:
Armando Rios, Jr began working for Meda Pharmaceuticals in May 2015. Approximately one month later, in a conversation about his plans to buy a new house, his supervisor allegedly said, ” “it must be hard for a Spic to have to get FHA [Federal Housing Administration] loans.” Several weeks later, the same supervisor allegedly commented that an actress auditioning with him and the supervisor for a commercial “would work if she didn’t look to Spicky.” Mr. Rios reported both incidents to the Company’s HR Department. The supervisor denied making the comments, and HR was allegedly dismissive. The company took no action. The supervisor then placed Mr. Rios on probation for poor performance, put him on a performance improvement plan, and ultimately terminated his employment, claiming his termination was for poor performance and “had nothing to do with his national origin[ ] or gender.”
As you can guess, Mr. Rios sued the company and its HR Director, alleging a hostile work environment under the New Jersey Law Against Discrimination (NJLAD). The trial court granted summary judgment to the employer, finding that no rational jury could find that the supervisor’s comments created a hostile work environment. The Appellate Division, while it affirmed the ruling, reasoned that the statements could sustain a hostile work environment claim, but cited a lack of evidence that he suffered an adverse employment consequence due to his complaints. Yesterday the New Jersey Supreme Court reversed.
Here’s the distilled version of the New Jersey Supreme Court’s reasoning, per the Chief Justice:
The NJLAD is a remedial statute that is intended to be construed liberally to advance its purposes. The key factor to consider is “whether the conduct was sufficiently severe or pervasive”, which is “measured by the surrounding circumstances”. The severity of a remark can be exacerbated when made by a supervisor, as it was here. The court said that the comments must be viewed from the standpoint of a reasonable Hispanic person in Mr. Rios’ position. The term used by the supervisor is “well-recognized as derogatory” and “highly insulting”. That the second statement was not actually made about Mr. Rios is irrelevant, according to the NJ Supreme Court.
The court also cited Lehman v Toys ‘R Us, NJ’s leading hostile work environment case, stating that treatment of others, as well as treatment of the plaintiff, affects the plaintiff’s work environment. The court also reasoned that if Mr. Rios could prove that he reported the statements and that the company took no action, that fact would further strengthen his hostile work environment claim. Finally, the court cited Lehman and another precedential case in NJ in rejecting the Appellate Division’s position that proof of an adverse employment action or retaliation was necessary to support a hostile work environment claim. (Just as an aside, it would seem to me that Mr. Rios also has/had a viable retaliation claim, though I have yet to find any indication that he in fact brought such a claim.)
OK, you might be thinking, but that’s a state court case, involving a state statute? What if you’re not a New Jersey employer? What about under Title VII of the Civil Rights Act? I might have something for you here, as well. The US Supreme Court, in Harris v Forklift Sys Inc 510 U.S. 17, 23 (1993), ruled that whether a work environment is hostile or abusive must be reviewed by “looking at all the circumstances” of the environment, which includes:
- the frequency of the discriminatory conduct;
- the severity of the conduct;
- whether it is physically threatening or humiliating, or a mere offensive utterance;
- whether it unreasonably interferes with an employee’s work performance
OK, but doesn’t this framework beg the question of whether one or two racial slurs can support a hostile work environment claim? So, here’s a case from the Second Circuit Court of Appeals that may help. The case is Daniel v. T&M Protection Resources, LLC, No. 15-560-cv, 2017 WL 1476598 (2d Cir. April 25, 2017). Mr. Daniel alleged that his supervisor called him “you fucking n***er;” and that his supervisor harassed him based on his perceived sexual orientation. The District Court granted summary judgment to the employer, finding one slur alone was not sufficient for a hostile work environment claim. The Second Circuit reversed, pointing out that:
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 ‘n***er’ by a supervisor in the presence of his subordinates (quoting Rivera v. Rochester Genessee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014)).
While the Court would not and did not decide whether one-time use of an “unambiguously racial epithet” created a hostile work environment, it ruled that the District Court “must now consider that possibility and not simply dismiss the claim outright”. As of now, the Third and Fourth Circuits agree with the 2nd Circuit. We may actually get some clarity in the near future. In addition, an employee in Robert Collier v. Dallas Cnty. Hosp. Dist., No. 19-10761 (5th Cir. Apr. 9, 2020), petition for cert. filed (U.S. Jan. 15, 2021) (No. 20-1004). has petitioned the US Supreme Court to hear his appeal on this very issue, so stay tuned!
Meanwhile, here’s what you can–and, in my humble opinion, should do under similar circumstances:
- Train and educate your workforce to prohibit – and not tolerate – any harassment in the workplace, even where the harassment seems to be isolated or “not the usual”;
- Review your anti-discrimination policies and employee handbooks;
- Make sure you have appropriate complaint procedures, prohibitions, and policies directed at ALL workplace discrimination.
If you don’t take these steps, you might end up being a test case, based on one epithet, comment or incident. My recommendation: Don’t be a test case. OK, I’m done — for now.
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
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