In yesterday’s blog post, our employment discrimination attorneys addressed what it takes to create an unlawfully hostile work environment under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act of 1967 (“ADEA”), based on the employee’s race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, or disability. (Best Law Read: Not All Hostile Work Environments Are Actionable). In that blog, our employee’s rights attorneys addressed the need to demonstrate that the conduct needs to be severe or pervasive in order to create a hostile work environment at work; and the one act or offense rarely is sufficient to establish that a hostile work environment exists. Today, we are focusing on the exception – the use of the “n-word” by a direct supervisor.
Previously, our race discrimination lawyers have often pointed 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.” (Best Law Read: Does Race Discrimination Count On Video Calls?; Can I Sue If My Boss Racially Discriminated Once? I Need A Lawyer!; Surprise! What Should I Do When I Learn My Boss Is Racist? Lawyer Best Reply!). The Court went onto say that 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 … This single incident might well have been sufficient to establish a hostile work environment.”
On the other hand, conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment – an environment that a reasonable person would find hostile or abusive – does not violate Title VII and the other employment discrimination laws. Similarly, in situations where the employee does not subjectively perceive the conduct and work environment to be abusive, Title VII is not violated.
Recently, the United States Court of Appeals for the Seventh Circuit addressed this issue in Scaife v. United States Dep’t of Veterans Affs., No. 21-1152, 2022 WL 4481488, at *3–4 (7th Cir. Sept. 27, 2022). In that case, Elaine Scaife worked for the Roudebush Veterans Affairs Medical Center in Indianapolis as a Human Resources (HR) Classifier. In September 2016, one of Scaife’s told her that Brian Fogg, Roudebush’s Chief of the Police Service, called Scaife the N-word at a February 2016 meeting. Fogg, who was a white male, did not supervise Scaife. Captain Roman Holowka subsequently informed Scaife Fogg was upset that Scaife declined his request to classify a Criminal Investigator position at a particular grade level and called Scaife a “stupid fucking n****r.”
First, the United States Court of Appeals for the Seventh Circuit held that under some circumstances the singular use of the N-Word is sufficient to create a hostile work environment:
It goes without saying that the N-word is an egregious racial epithet. Smith v. Ill. Dept’t of Transp., 936 F.3d 554, 561 (7th Cir. 2019); Paschall, 28 F.4th at 815 (“No other word in the English language so powerfully and instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans.” (citation omitted)). Because the N-word is egregious, we are not concerned with the number of times the epithet is used. See Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1047 (7th Cir. 2002); Hrobowski v. Worthington Steel Co., 358 F.3d 473, 477 (7th Cir. 2004); Woods v. Cantrell, 29 F.4th 284, 285 (5th Cir. 2022). A one-time use of the epithet can in some circumstances warrant Title VII liability. Paschall, 28 F.4th at 815.
Id. at *3.
With that law in mind, the Seventh Circuit held that this situation was not one where the singular use created a hostile work environment based on the totality of the circumstances. Specifically, the Court focused on the fact that the use of the N-word was not said directly to Scaife; that Scaife did not hear about the racial epithet until months later; and Fogg was not her supervisor. Specifically, the Court held:
To begin, Scaife heard about Chief Fogg’s slur from a co-worker. Although racial epithets do not always have to be stated directly to a plaintiff to create an objectively hostile work environment, see Gates v. Bd. of Educ. of the City of Chicago, 916 F.3d 631, 638–39 (7th Cir. 2019), remarks that are stated directly to the plaintiff weigh heavier than when a plaintiff hears them secondhand. Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 271 (7th Cir. 2004). Second, Scaife heard about Chief Fogg’s use of the racial slur several months after it was uttered. Specifically, Chief Fogg made the offensive statement in February, and Scaife did not find out until September. Outside of this, there is no evidence that Scaife ever heard Chief Fogg or anyone else make any racially derogatory statements in her presence. Third, Scaife’s reliance on Chief Fogg’s history of racial insensitivity with individuals at his current and former job does very little to bolster the race-based hostile work environment claim she has raised. See Smith v. Ne. Illinois Univ., 388 F.3d 559, 567 (7th Cir. 2004). While of course relevant, “second-hand harassment” is “not as great as the impact of harassment” directed at Scaife herself. Id.
Chief Fogg’s position is also critical to the analysis. … Chief Fogg did not have direct supervisory authority over her. We have previously noted that a supervisor’s use of a racial slur impacts the work environment far more severely than a coequal’s use. See Gates, 916 F.3d at 638 (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)).
Id. at *3-4.
With all due respect to the honorable judges in the United States Court of Appeals for the Seventh Circuit, they are missing an important factor: Leadership heard a manager use the N-word openly in the workplace and permitted it. There was no consequence to Fogg at all. In fact, no one informed Scaife of this racially hostility for months. As a result, it is reasonable to conclude that a Black employee would be fearful that such open racism was not only tolerated but implicitly permitted and would be hid from her until she might be confronted by an empowered racist – and never knowing exactly when that may happen.
I would argue that when an employer chooses to allow an employee – especially someone in management – to continue to be employed after angrily directing the n-word at another employee, the employer is expressly permitting a hostile work environment to fester; and thus, should be liable for creating that situation. Fogg should have been fired at that meeting and walked right out the door – do not pass Go, do not collect $200. Instead, the employer did not even give him a verbal warning. Unfortunately, the United States Court of Appeals for the Seventh Circuit disagreed with me.
Can I sue for a racially hostile work environment at work?
Best Race Discrimination Attorney Answer: Every case is different, but our attorneys will aggressively pursue every possible race discrimination claim that we think existes. If you feel that you are working in a racially hostile workplace, being harassed because you are Black or any other race, were fired because of your race, 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, 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 Ohio, Michigan, and North Carolina lawyers are here to fight for your rights.
Disclaimer:
The employment discrimination 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 I was fired by my racist manager”, “I’m being discriminated against at work because I’m Black”, “my boss harasses me because I’m Black,” or “How do I sue for racial discrimination in the workplace?”, your best option is to contact an experienced employment law 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.