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Can single use of n-word establish a hostile work environment?

April 30th, 2013  |  Kathy Kapusta

It’s been called “as deplorable and despicable as it is patently offensive,” and “probably the most offensive word in English.” But can the single use of the “n-word” be enough to create a hostile work environment? A recent decision out of the DC Circuit suggests that it could indeed be enough.

In Ayissi-Etoh v Fannie Mae (No. 11-7127, April 5, 2013), an African-American employee was promoted to a team leader position three months after he started working for Fannie Mae. However, he was the only one of 12 newly promoted employees not given a raise. Concerned, he met with the chief audit executive. When the employee asked about not receiving a raise, the executive allegedly responded, “For a young black man we are happy to have your expertise … I think I’m already paying you a lot of money.”   Several months later, in a meeting with a company vice president, the employee stated that he felt he was still being given staff-level work. In response, the executive allegedly yelled “Get out of my office n***er.”

Not surprisingly, the employee sued, asserting claims for race discrimination, hostile work environment, and retaliation. Although a federal district court granted summary judgment to Fannie Mae on all counts, the appeals court revived the employee’s claims. The court opined that the vice president’s single use of the “deeply offensive racial epithet” might well have been sufficient on its own to establish a hostile work environment. However, it ultimately didn’t reach this conclusion because it found that the incident was preceded by the “young black man” statement and followed by the employee having to work with the vice president for nearly three months until the VP was fired when outside investigators found it “highly likely” that he had in fact uttered “a highly offensive racial slur.”

One step further. Going a step further, however, Judge Kavanaugh, in a concurring opinion, wrote, “as I see it, the alleged statement by the Fannie Mae Vice President to [the employee] itself would establish a hostile work environment.” In Judge Kavanaugh’s view, being called the n-word by a supervisor “suffices by itself to establish a racially hostile work environment.” He acknowledged that cases in which a single incident can create a hostile work environment are rare, but “saying that a single incident of workplace conduct rarely can create a hostile work environment is different from saying that a single incident never can create a hostile work environment.”

Pointing out that courts and commentators both agree that a single physical act, such a physical assault, can create a hostile work environment, and that several courts have recognized that a single verbal or visual incident, such as racially hostile graffiti that amounts to a death threat, may be sufficiently severe to justify finding a hostile work environment, Judge Kavanaugh observed that “perhaps no single act can more quickly alter the conditions of employment, and create an abusive working environment, than the use of n***er by a supervisor in the presence of his subordinates.”