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A sign of the times? Justices asked to decide the threat-level of a hangman’s noose placed in a black employee’s work station

August 18th, 2016  |  Pamela Wolf

In the current political climate, in which many assert that dog-whistle politics have paved the way for divisiveness and racial discrimination more common in times that many Americans hoped were safely relegated to the past, the Supreme Court has been presented an opportunity to rule on just how powerful one particular symbol of racism—a hangman’s noose—remains today.

A senior HVAC mechanic at the University of California, San Francisco, has asked the highest court in the land to tell the Ninth Circuit that it was wrong when it affirmed a district court ruling that, as a matter of law, “an operational hangman’s noose purposefully hung in an African-American employee’s work area by his non-African-American supervisor is insufficiently ‘severe’ or ‘extremely serious’ to constitute a racially hostile work environment in violation of Title VII”—as the petition for certiorari characterized the court’s ruling. The case may be emblematic of a persistent racial divide felt so strongly by many blacks, and barely perceptible, if at all, to some of their white counterparts.

The Ninth Circuit affirmed summary judgment for the employer because the employee had failed to make a prima facie case—the noose, as it turns out, was not clearly enough targeted to the employee to be one of those single acts of harassment that are threatening enough to create a hostile work environment—at least in the eyes of the district court and the Ninth Circuit.

Symbol of racial violence. The employee asserts that the Ninth Circuit’s ruling is in direct conflict with the holdings of the Seventh, Tenth, Eleventh, and D.C. Circuits, which have “expressly recognized that a hangman’s noose—a devise historically used to lynch, murder, and terrorize African-Americans—stands apart as a self-evident symbol of racial violence, akin to a swastika.” The Ninth Circuit has effectively reduced the racially violent symbol to the status of a stray remark, according to the petitioner in Henry v. Regents of University of California (Dkt. No. 16-167).

The employee alleges that the record below shows he suffered a “plethora of racially harassing conduct,” including physical assault and being called a “n—-r” and a “monkey.” However, the “gravamen” of his case at summary judgment was that in July 2012, his supervisor had hung an operational hangman’s noose in a maintenance warehouse. When he and another African-American coworker discovered the noose, the employee felt intimidated, harassed, and threatened. The employee said the university acknowledged that the operational noose was hung by his supervisor, whom he already knew to harbor discrimination against African-Americans.

The district court acknowledged that a single, harassing incident may be enough to be “extremely severe” if it included violence or the threat of violence. Here, however, the noose could not serve as a threat of violence because it was not hung in the petitioner’s personal work area (such as a locker) and lacked a note or picture or other indication that the petitioner was the target of the display.

Hangman’s noose not inherently racial? The district court and the Ninth Circuit concluded that, as a matter of law, there is nothing inherently racial about the operational hangman’s noose that the employee encountered in his employer’s warehouse, thus creating a circuit split, according to the petition. The Court should take up the question, not only to resolve the circuit split, but “because the federal judiciary should not deny all remedy to a Title VII plaintiff merely because a symbol of racial violence appears to be anonymized and general.” The fact that the perpetrator did not adorn the noose “with exceptionally obvious indicia of his animus, or place it in an equally obvious location,” should not alone determine “severity.” To hold otherwise, would give incentive and leeway to those who harbor violent racist tendencies “to promulgate racial terror in the workplace so long as the violent objects appear non-specific or generalized,” the petition argues.

Question presented. The petitioner would like the Justices to resolve this question: “Is an operational hangman’s noose intentionally placed in an African-American employee’s work area by his non-African-American supervisor sufficiently ‘severe’ as a matter of law to constitute race harassment under Title VII?”