In October of 2018, we reported on a case out of the Eleventh Circuit Court of Appeals, 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, in which the Court held that one-time use of the word “nigger” is sufficient to trigger a hostile work environment. On February 19, 2019, the U.S. District Court for the Middle District of Tennessee, in Ronnie L. Outlaw v. SBH Services, Inc., followed suit. The Court held that the plaintiff’s single incident of harassment was sufficient to proceed to a jury.
Plaintiff Ronnie L. Outlaw, an African-American, and Alex Cruz, a Hispanic, worked for Defendant SBH Services, on a construction site. According to the Court’s opinion, Plaintiff attempted to correct Mr. Cruz’s performance when Mr. Cruz “grabbed him, pushed him, and said ‘[y]ou punk ass ni—er’.” Upon investigation, and finding both Mr. Outlaw and Mr. Cruz at fault, Defendant gave Plaintiff the option of continued employment having to work with Mr. Cruz or termination. Plaintiff quit and filed suit for race discrimination, retaliation, and hostile work environment.
The Court granted Defendant’s motion for summary judgment on Plaintiff’s race discrimination and retaliation claims, but held that although this was only one incident of harassment, a “reasonable jury could consider [it] severe enough to constitute a racially-hostile work environment…”
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.
