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Despite Chipotle’s claim black worker also used racial epithets, his bias claim proceeds to trial

By Kathleen Kapusta, J.D.

Rejecting Chipotle’s assertion that an African-American crew member, who claimed he was subjected to racially derogatory epithets, welcomed the alleged harassment by engaging in similar behavior, a federal court in Illinois found it significant, given the extremely negative connotation associated with the term “ni**er,” that Chipotle could not show he used that term rather than “ni**a.” Denying summary judgment against his Section 1981 race discrimination claim, the court noted that while some employees testified the terms were never used in a harassing manner, a jury could credit other testimony, including the employee’s, stating the opposite and find that the use of the terms was derogatory (Dapkus v. Chipotle Mexican Grill, Inc. , January 4, 2017, Kendall, V.).

The employee alleged the words “ni**er,” “ni**a,” and “gorilla” were used by African American and Latino employees and managers alike and when he complained, he was told “oh, shut up, ni**er.” He also claimed that when he and a kitchen manager were cutting meats and vegetables together, the manager told him “Don’t run out of meat today, ni**er, not on my watch,” and then said “Don’t make me use this,” referring to his knife.

After he was fired (for telling a transgender customer to “go find yourself”), he sued, alleging he was subjected to racially discriminatory epithets, physically threatened, and treated less favorably than employees who were not African American.

He did it, too. Arguing that he could not show the alleged harassment was unwelcome because he engaged in similar behavior, Chipotle claimed the employee not only used the words “ni**er” and “ni**a,” he also referred to women as “bitches” and “hoes.” Further, Chipotle asserted, he admitted that he used the n-word in a joking way. However, the court pointed out, he testified that he never used the n-word at work and that neither “ni**er” or “ni**a” could be used in a positive way. In addition, other workers testified that they never heard him use either term.

And while some workers did testify that the employee used the n-word, they were never asked to specify whether it was “ni**er” or “ni**a.” Moreover, they consistently stated that “ni**a” could be used in a racially harassing way depending on how it was said and the context of its use. And, the court noted, there was also testimony indicating the employee reacted negatively to the use of either term, regardless of whether it was used in a friendly way. Thus, a jury could find that the use of the terms was derogatory.

Didn’t understand complaint. Also rejected was Chipotle’s assertion that the alleged harassment was welcomed because the employee allowed it without complaining. While Chipotle did not dispute that he complained to a higher level supervisor about the knife incident and the use of the derogatory terms, it argued that the employee was not sure the supervisor understood his complaints because she did not speak English well. However, not only did Chipotle fail to point to any authority stating that the failure of a supervisor to fully understand a complaint somehow undermines the fact of the complaint itself, the employee testified that he also complained to other managers and thus a reasonable jury could find he did not welcome the speech.

Hostile environment. Citing an apprentice manager’s testimony that she heard at least four other individuals and the team leader use the n-word and that she reprimanded employees for using the word, as well as testimony from the employee and another worker that the terms “ni**er,” “ni**a,” and “gorilla” were used often in the restaurant, the court found a reasonable jury could conclude that his allegations were true and reliable. Viewing all of the facts and circumstances, a jury could also determine the harassment was severe or pervasive because the use of the derogatory terms was common and more than a mere utterance, the employee complained to managers to no avail, and he felt physically threatened and humiliated because of the conduct and words of his coworkers.

Employer liability. While Chipotle next argued that the employee could not establish employer liability, the court pointed out that in addition to alleging the manager responsible for hiring and firing subjected him and other African American crew members to less favorable treatment, he also claimed he personally heard her use the terms “ni**er” and “ni**a.” This was sufficient to create a fact issue because her use of the terms, even if not directed at the employee, could establish employer liability on the basis of supervisor conduct. Moreover, her use of the terms could have influenced if and how often other employees used these terms around or with reference to the employee.

Noting that the employee could also establish employer liability by showing Chipotle was negligent in either discovering or remedying harassment by an employee, the court pointed out that while he did not use either of Chipotle’s anonymous hotlines for submitting complaints, a factfinder could find his multiple complaints to management were sufficient to put Chipotle on notice of the alleged harassment. Given that the parties did not dispute whether Chipotle took any remedial action, the court found the employee met the standard for employee liability.