It should be common sense that employers, supervisors, and co-workers should not be able to use the “N-Word” while at work without some consequences being attached, but, as employment attorneys, it is the job of the members of The Spitz Law Firm to determine precisely what can be done, legally, in any given context. One potential cause of action that an employee may have against his or her employer is the creation and fostering of a “hostile work environment.” Many employees know the term, but, in order to prove a hostile work environment case, generally, an employee needs to show repeated, continuing discriminatory behavior, over a period of time, that created the hostile work environment; in other words, that it was severe in pervasive and not an isolated incident. Simply said, one occurrence had never previously held to be enough to create a hostile working environment.
It this general understanding that a hostile work environment cannot be created by an isolated incident that makes the District of Columbia Court of Appeals’ recent decision in Ayissi-Etoh v. Fannie Mae, et al. so interesting for employment attorneys and potential plaintiffs alike. In Ayissi-Etoh, the Court examined a situation in which a male, African American employee was told by his direct supervisor to “get out of my office nigger.” The lower Court granted summary judgment to the defendant, Fannie Mae, on the issue of whether Ayissi-Etoh was subjected to a hostile work environment because the comment was only made to the plaintiff on one occasion.
The Appeals Court, however, overturned the District Court’s decision and denied summary judgment to Fannie Mae, stating that a hostile work environment arguably existed based upon the single use of the “N-word,” a racial epithet that the Court said was “deeply offensive,” and, quoting other courts, noted “perhaps no single act can more quickly alter the conditions of employment” than “the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor.” The Court concluded that “This single incident might well have been sufficient to establish a hostile work environment,” and, as such, employees will now be fully capable of utilizing the Corut’s rationale to substantiate hostile work environment claims, essentially, whenever the “N-Word” is used even once in the workplace.
It does serve to note, however, that the plaintiff in Ayissi-Etoh was subjected to the term by his direct supervisor, and the Court’s rationale directly refers to the fact that hearing such a term from your boss is what so quickly alters the conditions of a plaintiff’s employment. As such, it is unclear and arguably unlikely that a hostile work environment claim could be maintained when the “N-Word is used by an employee’s co-worker on a singular occasion.
Critically, the practical impact of this decision is that employers may find it more difficult to gain summary judgment (getting the case dismissed as a matter of law before getting to a jury) by arguing isolated incidents. What trial court judge will want to hold himself or herself out as thinking that the use of the N-word is not as offensive as the court in Ayissi-Etoh? The increased probability of getting to a jury, who will not be sympathetic to such language from an employer, should in turn, this should have the effect of increasing the settlement value of such cases. As more and more courts adopt this position, the better it will be for all plaintiff employees.
Of course, one could hope that all employers would simply just stop using such harassing, discriminating, and offense language. Well, we can dream.
If you feel that you are being discriminated based on your race, whatever race that may be, then call the right attorney. Race discrimination includes being harassed, fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, and denied wages. When you call the right attorney to schedule a free and confidential consultation at (216) 291-4744, you will meet with an attorney from The Spitz Law Firm who will help you determine what your legal rights are.
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