Is a single racial slur in the workplace enough to establish harassment?
It is common knowledge that in the United States our civil rights are protected by law and that it is illegal to harass anyone in the workplace on the basis of race, religion, ethnicity, gender or sexual orientation. During the past two decades, however, the precedents about what constitutes workplace discrimination have been confusing and even contradictory. As of July 14, 2017, the Third Circuit U.S. Court of Appeals ruled that a single racial slur in the workplace can be sufficient cause to file a harassment lawsuit. The three judges on the panel declared that discriminatory speech or behavior need not be both “severe and pervasive” to be considered harassment, but rather that it may be either “severe or pervasive.” This may seem like a minor distinction, but in fact it is a significant one.
A Reversal of an Earlier Ruling
The Third Circuit U.S. Court of Appeals clarified the basis for discrimination lawsuits by deciding that a particularly egregious single spoken word or action is enough to create a hostile work environment. The court’s ruling reversed an earlier judgment from the U.S. District Court for the Middle District of Pennsylvania. The District Court’s decision in the case of Castleberry v. STI Group had dismissed all claims against the company. Apparently, the lower court felt that a single incident of discriminatory speech or action could not be assessed as establishing a hostile work environment.
The Case in Point
The case revolved around the following situation: Two African men, Atron Castleberry and John Brown, general laborers on a pipeline project for Chesapeake Energy Corp. were fired from their jobs as a direct result of reporting onsite verbal abuse to their supervisors. The verbal abuse they complained of was, without a doubt, foul and discriminatory. Both men reported that they had been told they would be terminated if they “nigger-rigged” a fence that they were tasked with removing. At the time, Castleberry and Brown were both working for STI Group, the staffing agency and subcontractor for the project. They filed a lawsuit against STI for racial discrimination.
Early on, the attorneys for STI tried to block the case with the argument that no courts had previously affirmed a ruling in which one isolated incident could be determined to constitute a hostile work environment. Judge Thomas Ambro, however, pointed out that the defendant’s argument missed the essence of the protection afforded by the The Supreme Court’s decision to adopt the phrase “severe or pervasive” statement. In other words, the law clearly spells out, by using the word “or,” that a single incident of discriminatory abuse may be, if severe enough, sufficient to determine a plaintiff’s harassment claim.
In his decision, Judge Ambro cited cases going back to 2001 in which varying standards had been used to determine culpability in discrimination cases. Not only had some courts used the “severe or pervasive” standard, but at least one had used a standard of “pervasive and regular.” In the end, Judge Ambro decided that the ultimate standard by which such cases should be determined is the one laid out by the U.S. Supreme Court as early as 1993: “severe or pervasive.”
Judge Ambro also pointed out that we should not be led astray by past inconsistencies when interpreting this case. Because the supervisor’s use of a racial slur was accompanied by a threat of termination, and because that termination actually occurred, there is no question that this workplace was a hostile, racially charged environment.