Supervisor Harassment More Serious Than by Co-Worker: 7th Cir.

Feb. 21, 2019, 3:18 PM

A black building engineer can take to trial his claim that the Chicago Board of Education subjected him to a racially hostile work environment, a federal appeals court ruled.

The Feb. 20 decision by the U.S. Court of Appeals for the Seventh Circuit reaffirms that who the alleged harasser is matters in determining whether illegal conduct occurred, at least for federal courts in Illinois, Indiana, and Wisconsin, the three states that make up the circuit.

Abuse directed at an employee by a supervisor is necessarily more severe than if the same misconduct was engaged in by a co-worker of the person harassed, the court said.

A lower court failed to draw that distinction when it granted summary judgment against Fred Gates on his racial harassment claim under Title VII of the 1964 Civil Rights Act, Judge David F. Hamilton said. The lower court also mistakenly required Gates to show that his work environment was “hellish,” Hamilton said.

That’s not the standard for proving a Title VII hostile environment claim, he said. “While a ‘hellish’ workplace is surely actionable, plaintiffs’ evidence need not show a descent into the Inferno,” Hamilton said.

The proper test is whether Gates experienced harassment that was severe or pervasive, the appeals court said. A jury could find that he did based on three encounters he had with his supervisor, Rafael Rivera, a facilities manager for the school board, the court said.

Gates alleges that Rivera twice referred to him using the “N word” and threatened to discipline his “black ass,” the court said. If it had been a co-worker who uttered those three racial slurs, summary judgment would likely have been proper, the court said.

But a jury could reasonably find that a supervisor directing such “toxic language” at a subordinate was severe and humiliating, Hamilton said. It could also conclude that the harassment interfered with Gates’s job performance, he said. Gates allegedly had to take medical leave to seek treatment for the homicidal thoughts Rivera’s abuse provoked, the court said.

Judges Daniel A. Manion and Michael Y. Scudder Jr. joined the opinion.

Gomberg & Associates represents Gates. In-house counsel represents the Chicago Board of Education.

The case is Gates v. Bd. of Educ. of Chi., 2019 BL 55732, 7th Cir., No. 17-3143, 2/20/19.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editor responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com

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