In a somewhat surprising and disturbing decision, the Third Circuit Court of Appeals has ruled that even a single one-word racial epithet can create a viable hostile work environment harassment claim.
Two African American laborers sued staffing agency STI Group after being fired from their jobs at Chesapeake Energy Corp. The workers had been told by their supervisor at Chesapeake that they would be fired if they “[N-word]-rigged” the fence-clearing task to which they were assigned.
Word Gets Out
The two men reported the comment two weeks later and were terminated thereafter with no reason being given. While they were rehired after a short time, they were let go again for “lack of work.”
They sued for racial harassment under federal law but the lower court dismissed, finding that they failed to meet the legal standard of proving offensive conduct that was “pervasive and regular.” The two men appealed to the Third Circuit in Philadelphia, who overturned the lower court and remanded the case for trial. The Third Circuit ruled that the lower court applied the wrong legal standard and should have looked to whether the conduct complained of was “severe or pervasive.”
Is it And or is it Or?
The Third Circuit confessed that their prior rulings probably caused some confusion because in some cases they announced that the offending conduct had to be “severe and pervasive” while in others they applied the standard of “pervasive and regular.” In one case, they actually declared the standard to be “pervasive and regular” yet they actually applied the “severe or persuasive” standard to decide the case.
Thus, the Third Circuit felt compelled to clear up this ambiguity and they did so by announcing that in this case and all others in the future, they would look to determine whether the offending conduct giving rise to the harassment claim was sufficiently “severe or pervasive” as to create a hostile work environment. In so doing, the court explained that they were following precedent from the US Supreme Court and a number of other Circuit Courts in adhering to a standard that allowed for “alternative possibilities.” This threshold of hostility can be met either by a single incident that is sufficiently egregious or by behaviors that are less offensive but more frequent.
Applying this standard in what the court deemed a “context-specific” basis, they ruled that the single use of the ugly racial term in this case was sufficiently severe to articulate a viable claim of hostile work environment harassment.
This may make it a little harder to get early dismissal of harassment claims. However, regardless of the standard used to determine whether a claim may proceed, our standards for how to address such claims remain unchanged.
Employers should still have clear, firm harassment prevention policies in place and everyone – especially supervisors and managers – should be reminded of their obligations not to use offensive terminology in the workplace. If a report of offensive behavior is made, it should be investigated and resolved in a timely and appropriate manner.
That’s our word to the wise.