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Does Race Discrimination Count On Video Calls?

On Behalf of | Apr 16, 2020 | Coronavirus, Employment Discrimination, Race Discrimination, Wrongful Termination |

Best Ohio Employment Discrimination Lawyers And Top Coronavirus Employment Law Attorneys Answer: Can I sue for racial harassment while working at home because of the Coronavirus? Is it race discrimination for my boss to make racist comments during a video conference calls during the COVID-19 crisis? How do I get coworkers to stop sending me racially offensive emails and racist text messages?

Does Race Discrimination Count On Video Calls?

Our employment attorneys have been blogging non-stop about all employment law things Coronavirus, from the Families First Coronavirus Response Act (“FFCRA”) impact on the Family and Medical Leave Act (“FMLA“) and COVID-19 Workers’ Compensation claims to wrongful termination claims. (See Can I Sue For FMLA Interference Before I’m Eligible?; Is Coronavirus Covered By Workers’ Comp?; Coronavirus Law: Can I Be Fired For Refusing To Work?). Our lawyers have even taken a detour to address employment law issues intersection with Joe Exotic.

Today, our attorneys are shifting back to focus on how existing employment laws impact some common issues that are popping up in this shelter in place environment. Our lawyers did that a little bit when we addressed getting paid for overtime at time and a half while working from home. (See COVID-19: Overtime From Your Living Room?). Today’s employment law blog talks about that one boss, manager, owner or coworker that we all know – the one that thinks all the rules and laws no longer apply because all the work is being done remotely. On some level, its understandable to think the rules are relaxed because employees are working at home in their basement or kitchen table wearing pajamas, sweatpants and some old hole riddled t-shirt. In that situation, people tend to act more like their true selves – which for some is not really a good thing.

Video conferencing, whether by Teams or Zoom, has become a new integral part of work life. This has allowed people to stay connected and manage projects. It has also created some problems. Take NASCAR star Kyle Larson for example. While doing a live-streamed virtual race (which is the NASCAR versions of a video conference) from his home, Larson did a microphone check by saying “You can’t hear me? Hey, nigger.” You can watch the video of the racial slur here. Outrage followed.

Our race discrimination lawyers have blogged regularly about how this type of conduct violates Title VII of the Civil Rights Act of 1964 and Ohio’s R.C. § 4112.02(A), which protects employees from being harassed and discriminated against by their boss, manager, and supervisor on the basis of race.  (See Employment Law: What Is Race Discrimination?; How Much Racism Do I Have To Put Up With At Work?; Law: My Boss Called Me Nigger and Monkey. What Should I do?). These employment discrimination laws also require your employer to take action to stop racial harassment and race discrimination by co-workers. (See Help! My Boss Won’t Stop Race Discrimination!; What Does My Job Have To Do When I Report Race Discrimination?).

The use of the n-word is not acceptable – not even once – not even from a video chat in your basement or living room. Our lawyers often point to the District of Columbia Court of Appeals’ decision in Ayissi-Etoh v. Fannie Mae, et al., which held that a hostile work environment can be established based upon the single use of the “N-word,” a racial epithet that the Court said was “deeply offensive.” The DC Court of Appeals further held that “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.”

What many have overlooked in this decision is the concurring opinion by one of the three judges that also heard the case. This is not unusual as the concurring opinion carries no legal precedent and therefore, is rarely cited to. However, this particular concurring opinion was written by then appellate judge, but now United States Supreme Court Justice Brett Michael Kavanaugh, who wrote:

The briefing and argument in this case focused on a significant question: Can one isolated yet severe incident of discriminatory conduct establish a hostile work environment under federal anti-discrimination laws? Fannie Mae has argued that a “singular comment” – even one as severe as the Fannie Mae Vice President’s alleged statement to Ayissi-Etoh, “Get out of my office nigger” – is “insufficient to establish an actionable hostile work environment.” Fannie Mae Br. 47. In my view, Fannie Mae is wrong on the law and wrong on the application of the law to the alleged facts of this case. The alleged statement by the Fannie Mae Vice President to Ayissi-Etoh by itself would establish a hostile work environment for purposes of federal anti-discrimination laws. …

As several courts have recognized, moreover, a single verbal (or visual) incident can likewise be sufficiently severe to justify a finding of a hostile work environment. See, e.g., Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906, 909 (8th Cir. 2003) (racially hostile graffiti that amounted to death threat qualifies as “severe”); Richardson v. N.Y. State Dept. of Correctional Service, 180 F.3d 426, 437 (2d Cir. 1999) (case involving the use of several racial epithets and insults where court stated: “even a single episode of harassment, if severe enough, can establish a hostile work environment”), abrogated on other grounds by Burlington N. & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006); cf. Jackson v. Flint Ink North American Corp., 370 F.3d 791, 795 (8th Cir. 2004) (“Even a single instance of workplace graffiti” involving a burning cross, “if sufficiently severe, can go a long way toward making out a Title VII claim”), rev’d on reh’g on other grounds, 382 F.3d 869 (8th Cir. 2004).

It may be difficult to fully catalogue the various verbal insults and epithets that by themselves could create a hostile work environment. And there may be close cases at the margins. But, in my view, being called the n-word by a supervisor – as Ayissi-Etoh alleges happened to him – suffices by itself to establish a racially hostile work environment. That epithet has been labeled, variously, a term that “sums up . . . all the bitter years of insult and struggle in America,” LANGSTON HUGHES, THE BIG SEA 269 (2d ed. 1993) (1940), “pure anathema to African-Americans,” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001), and “probably the most offensive word in English,” RANDOM HOUSE WEBSTER’S COLLEGE DICTIONARY 894 (2d rev. ed. 2000). See generally ALEX HALEY, ROOTS (1976); HARPER LEE, TO KILL A MOCKINGBIRD (1960). Other courts have explained that “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of . . . ‘nigger’ by a supervisor in the presence of his subordinates.” Spriggs, 242 F.3d at 185. 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.

In short, the case law demonstrates that a single, sufficiently severe incident may create a hostile work environment actionable under 42 U.S.C. § 1981 or Title VII. Here, as I see it, the alleged statement by the Fannie Mae Vice President to Ayissi-Etoh itself would establish a hostile work environment.

So, give Justice Kavanaugh credit. He could have just voted with the majority, but he took a stand and said that not only could the use of the n-word be sufficient to create a hostile work environment, but it actually did in that case.

Thankfully, the owner of the team that Larson drove for (as well as all of the sponsors) also took a stand and fired him immediately.

If you feel that you are being discriminated or harassed based on your race, whatever race that may be, then call the right attorney. It does not matter if the race discrimination is in person, on the phone, by video chat, text message or email. 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, you will meet with a race discrimination lawyer from The Spitz Law Firm who will help you determine the best way to pursue your legal claims. Our Cleveland, Columbus, Cincinnati, Toledo, Akron and Youngstown lawyers are here to fight for your rights.

Disclaimer:

The materials available at the top of this race discrimination page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking: “What should I do if the owner of the company that I work for called me racial slurs, including the n-word?”, “I’m being discriminated against because I’m black”, “I was fired today because I’m an African-American” or “How do I sue for race discrimination”, your best option is to contact an Ohio attorney to obtain advice with respect to race discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney Brian Spitz, or any individual attorney.