We wrote some time ago (In Some Cases Even a Single Word Can Create a Hostile Environment) of a trend in the federal courts to rule that even a single use of the N-word can be sufficient to establish a hostile work environment based on race.
However, the Seventh Circuit Court of Appeals has now taken a different path by dismissing a racial harassment case involving that same single utterance.
Problems From the Start
Terry Smith, who is African American, was hired as an Emergency Traffic Patrol Minuteman for the Illinois Department of Transportation. This entailed a variety of tasks relating to management of traffic and roadways in the state.
Smith proved to be a less-than-stellar performer as evidence by the following issues during his probationary period:
– He had a hard time following basis instructions and often challenged instructions given to him;
– He almost hit concrete pillar dividing the street into two separate lanes;
– He drove away from a gas pump with the nozzle still inserted in the truck;
– He almost sideswiped a state trooper vehicle; and
– He neglected to put his tow truck in neutral and pull the brake, causing the truck to roll and almost pin a supervisor against another vehicle.
Smith’s job performance led to a series of negative evaluations, including a note from his supervisor, Lloyd Colbert (another African American), that if Smith is allowed to keep working, “Someone else will pay the ultimate price.”
Smith had a different view of things. He complained at every turn that he was subjected to racial discrimination and harassment, and filed a claim with the Department’s internal Equal Employment Opportunity office.
Don’t Say That
After the Department initiated the formal procedure to terminate his employment, Smith had an angry confrontation with Colbert during which Colbert called him a “stupid ass n****r.”
Smith sued in federal district court for race discrimination under Title VII but his case was dismissed on summary judgement (early dismissal). Smith appealed to the Seventh Circuit Court of Appeals, who affirmed the dismissal.
The Court acknowledged that while the N-word is an “egregious racial epithet,” Smith needed to prove more than the mere fact that it was said – the law required that he show that the use of the word altered his working conditions and created an abusive work environment from both a subjective and objective standpoint.
The Court ruled that Smith failed to prove the subjective part of the analysis. For one thing, although he battled with the employer from the beginning of his tenure, he could not prove that any of the behaviors of which he complained leading up to the racial epithet had any racial connotations whatsoever. By the time Colbert actually made his ugly remark, Smith was already just two weeks from being fired and he was aware that proceedings to that effect had already begun.
The Seventh Circuit concluded that while it was theoretically possible that the workplace could have deteriorated from that point due to racially charged behavior, Smith never came forward with any evidence to that effect. Instead, he pointed to the presented the racial utterance as just one more incident in a series of affronts that he suffered during his employment. As such, Smith failed to prove that he subjectively found the workplace to be hostile due to racially motivated behavior. His hostile work environment claim was therefore dismissed without the Appeals Court having to address whether the single utterance of the N-word could sufficiently alter the work place from an objective viewpoint.
Interestingly, the Seventh Circuit never analyzed whether the impact of the racial epithet was affected by the fact that it was another African American who said it. Perhaps this might have been reviewed if the Court had found it necessary to consider the creation of a hostile work environment from an objective standpoint.
Because the Court focused only on Smith’s subjective view of the workplace, this decision differs a bit from those cases finding that a single use of the N-word objectively creates a hostile work environment. Nevertheless, this case may have shifted the focus of this argument a bit and created a new path for employers to follow in defending harassment claims based on a single racial utterance.