Title VII of the 1964 Civil Rights Act and other anti-discrimination statutes require employers to avoid discrimination on the basis of race, gender, and other improper classifications. The United States Supreme Court has established that conduct violating these statutes can arise not only from economic or tangible discrimination, but also from a workplace that is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of an employee’s employment relationship and create an abusive working environment.” This later form of discrimination has come to be known as “hostile work environment” discrimination.
Standard for Stating a Hostile Work Environment Claim
The United States Court of Appeals for the Fifth Circuit has specified that for an employee to state such a claim adequately, he or she must allege:
- Membership in a protected group;
- Being subjected to unwelcome harassment based upon a protected characteristic which affects a term or condition of employment, and
- Harassment in a situation where the employer knew or should have known of such harassment and failed to take prompt remedial action.
How Pervasive Must the Hostile Work Environment Be?
In Woods v. Cantrell, the Fifth Circuit recently approved a rare “single event” claim of hostile work environment situation which portends potential hazards for employers.
The case focused upon the wording of an African-American employee’s complaint which raised, among other claims, a claim for hostile work environment. To support that claim, the employee alleged that in the presence of others in the workplace, his supervisor, a person of a different ethnic descent, called him a racial epithet identified in the decision as “Lazy Monkey A___ N___.”
This was the only conduct cited by the employee. This claim of hostile work environment had been dismissed by the court below on the basis that “a single utterance of a racial epithet, despicable as it is, cannot support a hostile work environment claim.”
The Court of Appeals disagreed with this conclusion.
It recognized that its prior decisions had not made clear the extent to which one single hostile act could constitute a hostile work environment violation. Even so, in reviewing decisions from other Courts of Appeals around the United States, the Fifth Circuit acknowledged that “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet as the ‘N-Word’ by a supervisor in the presence of subordinates.” In evaluating the legal landscape presented in this case, the Court went on to quote from another decision that characterized the “N-Word” as “probably the most offensive word in English.”
Single Event Can Constitute Hostile Work Environment
On this basis, the Fifth Circuit concluded that the event identified by the employee in this case stated an actionable claim of hostile work environment which, if supported by adequate proof, could entitle the employee to recover damages.
In the wake of this rejuvenation of “single event” hostile work environment claims, employers are well-advised to counsel their supervisory staff about the hazards of using, or tolerating the use of, racial (or ethnic) epithets in the workplace.
As the above hostile work environment standard indicates, an employer can be held liable for such a claim if it knew or should have known of unlawful harassment and failed to take prompt remedial action to address it. Given the potential exposure to single event hostile work environment claims, employers must now recognize that such “prompt action” may well have to occur before a supervisor expresses an offensive comment, based upon what an employer knew or should have been known prior to that single event.
Conclusion
This recent hostile work environment decision underscores the hazard for employers in not properly training and disciplining supervisors about workplace conduct. Such training must be repeated regularly to ensure proper standards of conduct apply in the workplace. Jackson Walker’s employment lawyers can provide assistance with both creating and administering such a policy to assist employers in thwarting potentially toxic work environments.
Meet Lonnie
Meet LonnieLionel M. Schooler is a management-side employment lawyer and recognized authority on employment law, federal appellate practice, and arbitration. Lonnie has more than 45 years of experience in handling workplace matters. He previously served as Chair of the Houston Bar Associations’ Labor & Employment Section, and has been a frequent speaker and author on employment-related matters. For questions, contact lschooler@jw.com.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.
