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Words wound and employers may be required to pay for those injuries

May 28th, 2015  |  Ron Miller

There’s an old adage that “words are never a provocation.” But we all realize that words, in fact, can wound and leave deep and lasting scars on their victims. Courts have recognized that racial epithets and terms that conjure up racial stereotypes provide ample cause for an employee to feel the heat of a hostile work environment. Three recent decisions serve as a reminder of the seriousness of inappropriate “words” in the workplace.

Underscoring the seriousness of inappropriate language in the workplace, the Fourth Circuit, sitting en banc in Boyer-Liberto v. Fountainebleau Corp., held an African-American female who was called a “porch monkey” by a coworker on two consecutive days could pursue race discrimination and retaliation claims under Title VII and Sec. 1981. Looking to the Supreme Court’s pronouncement in Faragher v. City of Boca Raton, the appeals court concluded that an isolated incident of harassment, if extremely serious, can create a hostile work environment.

Relying on the Fourth Circuit’s precedent in Jordan v. Alternative Resources Corp., the district court had awarded summary judgment to the employer, concluding that “the two incidents of use of a racial epithet do not comprise either pervasive or severe conduct, however unacceptable they are.”

Severity of conduct. The en banc Fourth Circuit first considered whether the employee made the required showing that “the environment would reasonably be perceived, and is perceived, as hostile or abusive.” Although a viable claim often involves repeated conduct, an “isolated incident” of harassment can “amount to discriminatory changes in the terms and conditions of employment” if that incident is “extremely serious,” reasoned the court.

In measuring the severity of harassing conduct, the status of the harasser may be a significant factor. Thus, “a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character.” The status of the harasser also is relevant to the fourth element of a hostile work environment claim: whether the harassment is imputable to the employer. For purposes of vicarious liability, the harasser qualifies as a supervisor, rather than a coworker, “if he or she is empowered by the employer to take tangible employment actions against the victim.”

Here, the court pointed out that before the incident occurred, the coworker repeatedly and effectively communicated to the employee that she had the owner’s ear and could have the employee fired. She berated the employee’s job performance and then obstructed her attempt to report the racial harassment to management.

Proper standard. The appeals court determined that the Jordan standards were at odds with the hope and expectation that employees will report harassment early, before it rises to the level of a hostile environment. The question, then, becomes this: What is the proper standard for determining whether an employee who reports an isolated incident of harassment has a reasonable belief that she is opposing a hostile work environment in progress? When assessing the reasonableness of an employee’s belief that a hostile environment is occurring based on an isolated incident, the focus should be on the severity of the harassment, concluded the Fourth Circuit. That assessment involves factors used to judge whether a workplace is sufficiently hostile or abusive for purposes of a hostile environment claim—specifically, whether the discriminatory conduct “is physically threatening or humiliating, or a mere offensive utterance.”

Applying this standard, the appeals court concluded that a jury could find the employee reasonably believed there was a hostile work environment in progress when she reported the manager’s use of the “porch monkey” slur. In the context of her retaliation claims, the employee had made the lesser showing that the harassment was sufficiently severe to render reasonable her belief that a hostile environment was occurring.

The “N” word. Racial epithets were also at the heart of the complaints of two African-American drivers for a moving company in Jackson v. Morse Moving & Storage, Inc. In that case, the employees also sued their former employer under Title VII and Section 1981 asserting that they were discriminated against and harassed on the basis of their race and retaliated against for complaining. Both employees claimed to have experienced racial discrimination from coworkers and supervisors, including being called a “big black n****r,” “a slow n****r,” a “dumb n****r,” a “f***ing porch monkey,” and a “black motherf***ing n****r,” among other slurs. The drivers informed the general manager about the slurs and were promised action, but the coworkers’ behavior did not change.

Although the employer argued that there was no evidence the employees’ complaints about racial animus caused their termination, the employees’ retaliatory discharge claims survived summary judgment.

Reviewing the employees’ claims under the direct method, the court concluded that they sustained their burden of showing a causal connection between their harassment complaints and their terminations. There was evidence that the GM said that he would not schedule them to work with the coworkers about whom they had complained, as well as evidence that when another worker protested the treatment of the two employees, his hours were cut. Moreover, the evidence showed that management had done nothing to address their complaints of racial harassment. Thus, the court found they sustained their burden of showing a causal connection between their claims and later discharges.

Pimpmobile. Additionally, words with no obvious racial connotation may still be found to have a racial component, ruled the court in Perkins v. National Express Corp. Here, the court determined that a reasonable jury could conclude from the context that the terms “a player’s” car and “pimpmobile” uttered to an African-American manager by his supervisor carried a racially discriminatory meaning. It thus permitted the employee to move forward on his claim that multiple drug tests within a nine-month period were racially discriminatory.

According to the employee, during his tenure with the company his supervisor made racially offensive remarks to him, including that the employee drove a “player’s” car or “pimpmobile,” and took discriminatory actions against him. He explained that he usually commuted to work in his 1994 Volvo. But when he drove his Mercedes-Benz to work, his supervisor made the comment that he was riding his “player’s” or “pimpmobile.” The employee testified that the statements referred to African-Americans in luxury cars and that he took the comment offensively.

It was precisely the ambiguity of the comment that created a genuine dispute of fact over whether the reference involved a discriminatory racial connotation, given the context. Given that the supervisor directed the “pimpmobile” comments to the employee specifically on the day he drove his Mercedes to work, a reasonable jury could find that the reference to “player’s” or “pimp” directed at an African-American male driving a luxury car carried a discriminatory meaning.

While litigants are often reminded that courts do not “sit as a super-personnel department” and that Title VII is not a “general civility code,” it is bears remembering that certain language remains out of bounds in the rough and tumble of the workplace.