Just one racial slur in the workplace could be enough for a harassment lawsuit, according to a ruling by the U.S. Court of Appeals for the Third Circuit, which highlights what needs to be alleged for workplace discrimination claims to survive the pleadings stage. A three-judge panel of the circuit determined plaintiffs need to show that harassment is “severe or pervasive,” rather than “severe and pervasive.” So, what does this ruling mean for harassment lawsuits?
The concept of harassment in the workplace derives from the prohibition against discrimination in the terms and conditions of employment, as provided in Title VII of the Civil rights Act of 1964. The Supreme Court long ago determined that the prohibition against discrimination applies to harassing conduct, if that conduct is either severe or pervasive.
Jay Holland, chair of the Labor, Employment, and Qui Tam Whistleblower practice with Joseph Greenwald & Laake, recently sat down with Inside Counsel how one racial slur in the workplace be enough for a harassment lawsuit.
As the court in Castleberry stated, “Severity and pervasiveness are alternative possibilities.” So, a single racial slur could be so extreme and severe that it could be highly offensive and enough to state a claim of racial harassment.
“Here, the slur was the use of the ‘N-word’ in the context of criticizing the work of African American employees and threatening them with termination,” explained Holland. “Our societal norms – rightly in my view – have reached a point where use of that word is not a mere offensive utterance that would not rise to the level of stating a claim for hostile work environment. Instead, the court held that it indeed does.”
As this Third Circuit panel acknowledged, its past jurisprudence on the pleading standards for a hostile work environment were muddled at best. Its past cases had referred to a variety of possible pleading standards, including severe and pervasive, and pervasive and regular – none of them correct, according to Holland.
“The factual context of this case certainly contributed to the ultimate holding. Despite the focus on the one slur-nature of the case, there apparently was a deeper history of racial animus and offensive terms used in this workplace,” he said. “The court likely took the totality of the facts as plead in consideration in reaching its decision.”
So, the use of the slur was also used in the context of threatening termination – which impacts the core purpose of Title VII. As quoted in the case, “They claim that, when working on a fence-removal project, a supervisor told Castleberry and his coworkers that if they had “nigger rigged” the fence, they would be fired.” Thus, the confluence of using the highly offensive term with the threat undoubtedly played a role in the court’s decision. The pleading must describe in detail that the harassment was directed at a protected class under Title VII, such as race or gender, and that the harassment was severe or pervasive.
“I tend to look at the ‘severe or pervasive’ standard as a sliding scale,” he explained. “The more severe the conduct, then the less pervasive it needs to be. On the other hand, if the conduct is less severe, than it must be persistent and happen often to satisfy the pervasive criteria. Ultimately, there should be proof of severe emotional harm to maximize the chances for success. There is a natural skepticism on the bench as it relates to harassment cases, and has often been said, courts have no desire to be Super HR Departments, and will do what it takes to avoid playing that role in ordinary workplace disputes and scrapes.”
This ruling brings the Third Circuit in line with other circuits and Supreme Court precedent as to the correct pleading standard. So, in that Circuit, the case is significant and makes it much more likely that plaintiffs will survive motions to dismiss. It will also give greater leverage in negotiation or at mediation where employment law practitioners spend most of their time, according to Holland. “I have corrected mediators or magistrate judges many times when they have asserted that the harassment in the particular case was not severe and pervasive,” he said.
For employers, the key takeaways, per Holland, include: Have a drafted harassment and discrimination policy that is provided to all employees, with acknowledgement of receipt; Mandatory anti-harassment and discrimination training for everyone and; Consistent application of those policies and strong leadership – leading by example should lead to employees knowing that this type of conduct would never be acceptable, and would be at risk of their jobs.