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‘N-Word’ as Hostile Work Trigger Left in Gray Area by High Court

May 18, 2021, 9:31 AM

Robert Collier says nearly every day he saw the “N-word” carved into the wall of the elevator he took to the cafeteria of the Dallas hospital where he worked. In a storage room, a pair of swastikas were painted two feet high on the wall where the tools he used were kept.

Collier, who is Black, says he complained to his former employer Parkland Health and Hospital System but the offensive word and graffiti weren’t removed for months. He also says he and other Black employees were referred to as “boy” by colleagues.

Despite calls from civil rights groups, the U.S. Supreme Court declined to review an appellate ruling that Collier’s allegations weren’t sufficient to establish a hostile work environment claim under Title VII of the 1964 Civil Rights Act, leaving in place a divide in how the nation’s regional federal appeals courts interpret such allegations.

Rejection of the case, up from the U.S. Court of Appeals for the Fifth Circuit in New Orleans, comes as companies are responding to calls for racial equality in the workplace, following the Black Lives Matter protests sparked by George Floyd’s murder last year. Many businesses say they’ll look inward to reckon with systemic biases toward Black workers in particular, and promise to bolster diversity and inclusion programs.

Workers advocates had hoped that this issue would be considered by the high court.

“The facts of this case are truly outrageous—that anyone would defend and downplay that the use of the N-word doesn’t affect work conditions of Black employees,” said Tiffany Wright, co-director of Civil Rights Clinic at Howard University, which was one of the groups that pushed the Supreme Court to consider the case. “We will continue to see issues like these in the courts.”

Split in Courts

U.S. appeals courts are divided on whether a single workplace use of the N-word constitutes a hostile work environment claim under Title VII, issuing divergent opinions on whether highly charged racial language, such as the N-word, offensive graffiti or the presence of nooses at work alone should rise to a hostile work environment claim under federal civil rights law.

Most of the circuits that have addressed the issue say that isolated incidents won’t rise to the high standard necessary to bring such a lawsuit before a jury. To prove such a claim, an employee must show they were subjected to “sufficiently severe or pervasive” behavior that would alert the conditions of employment.

In 1993, the Supreme Court found that the “mere utterance” of a racial epithet is not enough, but five years later it ruled that a serious incident alone could be severe enough to establish a hostile environment.

In the Richmond, Va.-based Fourth Circuit and the D.C. Circuit, the judges found a single use of a racially offensive term can establish a claim. In five other federal appeals courts, the Fifth, Sixth, Seventh, Eighth, and Tenth, have ruled that a claim can’t be proven by an isolated incident.

The D.C. Circuit ruling was authored by U.S. Attorney General Merrick Garland while he was still serving on the court along with now-current Supreme Court Justice Brett Kavanaugh, who wrote a concurrence. Kavanaugh said in his view that being called the N-word even once was enough.

“No other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans,” he said.

In Collier’s cases, the NAACP told the justices that a narrow view on Title VII “diminishes workplace protections against harassment and discrimination.”

But Judge Paul Niemeyer dissented an en banc majority in the Fourth Circuit case, stating that the holding would be “untenable” and lead to widespread litigation over many offensive workplace comments.

Dallas Case

In April 2020, the Fifth Circuit said Dallas’ Parkland Health and Hospital System didn’t have to face trial on Collier’s retaliation claim. The case, “though disturbing,” didn’t describe incidents that establish harassment sufficiently severe or pervasive enough to violate federal or state law, the panel said.

Parkland’s attorneys told the high court that the health care system doesn’t dispute that the term is racially offensive, but that neither Collier’s petition nor his underlying hostile work environment claim hinges on that question. Hostile workplace behavior does not, without more, give rise to a claim under Title VII, they argued.

“Determining whether such a discriminatory environment exists hinges on an ‘all circumstances inquiry’ that examines ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance,’” according to the healthcare provider.

They also said that adopting a bright-line rule that a single workplace use of the N-word creates a hostile work environment would overturn prior precedent. The hospital’s lawyers maintained that Collier was fired for insubordination and aggressive behavior, which the Fifth Circuit agreed was a “fireable offense.”

Parkland’s attorneys didn’t respond to a request for comment.

“We are very disappointed Robert Collier will never have his day in court. The position by the hospital and the Fifth Circuit is that a work environment suffused by racial epithets and the use of a pejorative to refer to Black men is perfectly lawful,” said Brian Wolfman, a Georgetown University law professor, who represented Collier.

Still, he said he believes Collier’s case could spark momentum for the change on how to view the law. “The lower courts are seriously divided in what circumstances racial epithets in the workplace rise to a claim under Title VII,” Wolfman said.

“The ‘N-word’ has no business in the workplace,” said Lisa Holder, of counsel with the Equal Justice Society.

“SCOTUS missed an important opportunity to offer Mr. Collier a measure of justice and to resolve this circuit split in a manner consistent with the nation’s evolving mores on racial justice,” Holder said. “Nevertheless, change is here and even this Court will have to move in a progressive direction to accommodate that evolution in the workplace and beyond.”

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Travis Tritten at ttritten@bgov.com

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