Racial Harassment Redefined
Most courts have required multiple instances of inappropriate or offensive behavior to constitute harassment. However, the Eleventh Circuit Court of Appeals, in Smelter v. S. Home Care Servs., Inc., 2018 U.S. App. LEXIS 27248; 27 Fla. L. Weekly Fed. C 1359; __ F.3d __; 2018 WL 4560684, held that one-time use of the word “nigger” is sufficient to trigger a hostile work environment.
District Court
The plaintiff was employed by Southern Home Care Services as a customer service supervisor in July 2013. She required extra training and had many performance issues during her employment. In September 2013, less than two months later, she was terminated for poor performance. Following her termination, the plaintiff alleged that she endured racist remarks from her co-workers nearly every day during her employment; that a co-worker had called her a “dumb black nigger” on her last day; that her co-workers made derogatory comments about black men, black women, President Obama, and compared the plaintiff with a monkey from the movie Planet of the Apes; and that her supervisor thought the racist comments were funny.
The plaintiff admitted that she had never complained about any of the comments prior to the final incident, but that she had told her supervisor about the harassment before she was terminated. She also claimed that the supervisor overheard many comments and found them funny. The supervisor claimed that she never complained about any race-related comments. Further, the plaintiff’s exit interview documents, which both the plaintiff and her supervisor signed, had no mention of any harassment-related complaints.
The district court granted summary judgment for the company, finding that the harassment the plaintiff allegedly experienced was not sufficiently severe or pervasive enough to constitute a hostile work environment, as a matter of law, and that the employer had no knowledge of the alleged harassment.
The plaintiff appealed to the Eleventh Circuit.
Eleventh Circuit Court of Appeals
The Eleventh Circuit Court of Appeals reverse the District Court’s decision regarding plaintiff’s hostile work environment allegation. The Court held that the one-time use of the word “nigger” was sufficient to constitute severe harassment and that the plaintiff’s supervisor was in fact aware of the harassing comments.
The Court remanded the case to the District Court for trial.
Racial Harassment
Title VII makes it unlawful for an employer to discriminate against any individual with respect to his or her terms, conditions, or privileges of employment, because of race. 42 U.S.C.S. § 2000e-2(a)(1). When an employee’s harassment claim is based on race, he or she must prove five elements: (1) he or she belongs to a protected class, (2) he or she was subjected to unwelcome harassment, (3) the harassment was based on race, (4) the harassment was sufficiently severe or pervasive to alter the terms of employment and create a discriminatorily abusive working environment, and (5) the employer is responsible for the environment under a theory of vicarious or direct liability. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).
To establish that racial harassment was sufficiently severe or pervasive to alter the terms or conditions of employment, an employee must establish that he or she subjectively perceived the environment to be abusive and that the work environment was one that a reasonable person would find hostile or abusive. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) (en banc).
Employers Beware
I previously advised that the EEOC has ramped up its litigation and enforcement in all areas of workplace discrimination and harassment. Employers should review, revise, and enforce their EEO policies.
Contact the Arefin Law Office, LLC for EEO compliant policies and procedures, as well as on-site Diversity and Inclusion training for your employees and management.
