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Should I Report Racial Harassment By Coworkers? Yes!

by | Jan 23, 2023 | Employment Discrimination, Employment Law, Federal Law Update, Race Discrimination |

Today, we look at the recent United States Court of Appeals for the Fifth Circuit race discrimination case, Hudson v. Lincare, Inc., No. 22-50149, 2023 WL 240929, at *1 (5th Cir. Jan. 18, 2023).

The plaintiff-employee in this case, Brittany Hudson, is a Black female who was employed by Lincare, Incorporated a sales representative. After working for the company for three years, Hudson was transferred to the Austin, Texas office, where she worked with seven other employees, none of whom were Black.

According to the case, Hudson dealt with:

  • Co-workers regularly stated racial epithets and made racially charged comments in the office.
  • She was directly called the N-Word as well as a “n****r bitch.”
  • A co-worker stated that she was dressing too Black, and qualified that she was allowed to say that because her daughter-in-law was Black.
  • A different co-worker called her “loud and black” and “ghetto.”
  • When one co-worker, who regularly used the full N-Word, was asked not to say the N-Word any further at work, that co-worker defended herself by insisting that “she used the word only outside of work, with her ‘close friends.’”
  • Yet another co-worker called Hudson “Aunt Jemima.”

Needless to say, this conduct is horrific and racially hostile. But does it mean that Hudson won her claim? Read on.

What Conduct Qualifies As A Racial Hostile Work Environment?

Hostile work environment is a specific type of race discrimination claim under Title VII of the Civil Rights Act of 1964. Title VII prohibits “discriminat[ion] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race.” 42 U.S.C. § 2000e–2(a)(1).

In Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), the United States Supreme Court held that Title VII will be violated when a “workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

To prove a hostile work environment under Title VII, an employee must present sufficient evidence of five elements, including that (1) the employee belongs to a protected class – in this case race; (2) the employee was subjected to unwelcome harassment; (3) the harassment complained of was based on his membership in the protected group, i.e. because of race; (4) the harassment altered a term, condition, or privilege of employment; and (5) the employer knew or should have known of the discriminatory harassment but failed to take prompt corrective action.

This case turned on the last requirement.

Best Lawyer Hostile Work Environment Blogs:

What should I do when coworkers are harassing me?

In situations where an employee faces racial harassment in the workplace by fellow e/ees co-worker, the negligence standard governs employer liability. To that end, the United States Supreme Court held that an “employer is negligent with respect to … harassment if it knew or should have known about the conduct and failed to stop it.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).

The burden is not just on the employer to pay attention. Indeed, several courts have held that employee’s claim would fail if that employee unreasonably failed to take advantage of corrective or reporting opportunities provided by the employer. Even when an employee does timely report racial harassment and discrimination in the workplace, the employer can avoid liability by taking prompt remedial action that is reasonably calculated to stop the harassing conduct perpetrated by coworkers.

This is where the United States Court of Appeals for the Fifth Circuit held against Hudson:

The record amply demonstrates that as soon Lincare knew about Hudson’s harassment, it intervened. After Torres’s invective against Hudson at the June 2019 meeting, Greenway reported the misconduct to HR that very day. An investigation ensued, and only five days later, Lincare issued final written warnings to Torres and Ruiz, informing them that another instance of racial slurs would result in their termination. In other words, Lincare “took the allegations seriously, it conducted prompt and thorough investigations, and it immediately implemented remedial and disciplinary measures based on the results of such investigations.” Carmon v. Lubrizol Corp., 17 F.3d 791, 795 (5th Cir. 1994). It is beyond dispute that such action was “reasonably calculated to end the harassment.” Harvill v. Westward Commc’ns, LLC, 433 F.3d 428, 437 (5th Cir. 2005) (quoting Skidmore v. Precision Printing & Pkg. Inc., 188 F.3d 606, 615 (5th Cir. 1999)).

Hudson at *4 (footnote omitted).

I have a few thoughts on this. First off, any employer that find any employee using the N-Word or even insisting that it is acceptable to use the hard R, full word in any circumstance should be fired. While an employer can avoid liability by reprimanding the racist employee the first time around by claiming ignorance and only issuing a warning, the next time that prideful racist spits out the N-Word, the employer can no longer plead ignorance and avoid liability. With that legal analysis stated, geez, once you find out that your employee is dropping the N-Word and insisting that she will still do it on her own time, is that really the type of person you want representing your company? Moreover, what message does that send to the rest of the workforce that you can get away with saying anything you want, not matter how racist, sexist, homophobic, or antisemitic, for example, until you are caught and warned the first time?

Next, this highlights for employees the importance of timely and properly reporting racial harassment by coworkers in the workplace – something that our employment discrimination lawyers have preached over and over again.

Best Lawyer Hostile Work Environment Blogs:

Do I have a claim for a racially hostile work environment?

Best Race Discrimination Attorney Answer: If you are asking whether or not you have a race-based hostile work environment claim, chances are you are being subjected to very bad racial conduct on your job – be it from your supervisor, manager, or coworkers. Because every case is different, you should not rely on reading race discrimination articles or employment law blogs to determine the viability of your potential claims. Instead, you should call the right attorney to schedule a free and confidential consultation, you will meet with a race discrimination lawyer from Spitz, The Employee’s Law Firm who will help you determine the best way to pursue your legal claims. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Our Ohio, Michigan, Kentucky, and North Carolina race discrimination attorneys are here to fight for your rights.

Disclaimer:

The racially hostile work environment legal writings on this race discrimination blog 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 about your potential race discrimination or racial harassment claims, your best option is to contact an 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.