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Yesterday, our employment discrimination lawyers discussed the failure to promote claim at issue in Wince v. CBRE, Inc., No. 22-1593, 2023 WL 3191422 (7th Cir. May 2, 2023). (See Can A Higher Degree Prove Failure To Promote?) Today, we look at Sylvester Wince’s race-based hostile work environment claim under Title VII of the Civil Rights Act of 1964. According to Wince’s complaint, he found his lunch box in his locker with the N-word written on it along with “you don’t belong here” and “we don’t want you here,” among other statement. After that, he objected to being called “Sly,” short for Sylvester because Wince believed the nickname was racially derogatory and suggested he was sneaky. The Complaint further pointed to the fact that Richard Saulig, Director of Facilities, directly told Wince, “we don’t like you.”

Under Title VII, how do you prove a racially hostile work environment claim?

To prove a racially hostile work environment claim under Title VII, an employee must show the following:

  1. The employee is a member of a protected class: The employee must be a member of a race or ethnicity that is protected under Title VII.
  2. The employee was subjected to unwelcome harassment: The employee must show that they were subjected to unwelcome harassment that was based on their race or ethnicity. This harassment can include verbal or physical conduct, such as racial slurs, offensive jokes, or physical threats.
  3. The harassment was severe or pervasive: The employee must demonstrate that the harassment was severe or pervasive enough to create a hostile work environment. This means that the harassment was so severe or frequent that it altered the conditions of the employee’s employment and created an abusive or hostile work environment.
  4. The employer is liable: Finally, the employee must show that the employer is liable for the harassment. The employer can be held liable if they knew or should have known about the harassment and failed to take appropriate action to prevent or stop it.

Best Race Discrimination Attorney Blogs on Point:

Will my employer be liable for a racially hostile workplace if I don’t report coworker harassment?

Generally, employers “will not be liable for the hostile environment absent proof that it failed to take appropriate remedial measures once apprised of the harassment.” Hrobowski v. Worthington Steel Co., 358 F.3d 473, 478 (7th Cir. 2004). On this point, the law does not consider an employer to be apprised of the harassment “unless the employee makes a concerted effort to inform the employer that a problem exists.” Silk v. City of Chicago, 194 F.3d 788, 807 (7th Cir.1999) (internal quotation omitted). However, an employer could be charged with constructive notice where the harassment was sufficiently obvious. Mason v. Southern Ill. Univ., 233 F.3d 1036, 1046 (7th Cir.2000).

If you experience racial harassment in the workplace but do not report it to your employer, it may be more difficult to hold your employer liable for the harassment. Employers have a duty to prevent and address harassment in the workplace, but they cannot take action if they are unaware that the harassment is occurring.

However, if your employer knew or should have known about the harassment, even if you did not report it, they may still be liable for failing to take appropriate action to address the situation. For example, if the harassment was so severe or pervasive that it was obvious to others in the workplace, or if the employer had a policy of turning a blind eye to complaints of harassment, they may be held liable even if you did not report the harassment.

It is important to note that reporting harassment to your employer is generally the best course of action, as it gives the employer an opportunity to investigate and address the situation. Moreover, once you report racial discrimination or harassment, Title VII makes it unlawful for your manager or boss to engage in any form of retaliation. If your employer does not take action to stop the harassment, or if you are retaliated against for reporting the harassment, you may have additional legal claims under Title VII.

If you are experiencing racial harassment in the workplace, it is important to speak with an experienced employment discrimination attorney who can advise you on your legal options and help you navigate the process of reporting the harassment to your employer.

Wince’s problem was that he did not report the use of the N-word and other language written onto his lunch box. As a result, the United States Court of Appeals for the Seventh Circuit held that his employer could not be held liable:

No one disputes Wince’s testimony that unknown people wrote racist slurs on his lunchbox. This incident is appalling. But an employer is not liable for coemployees’ racial harassment if the plaintiff fails to inform the employer that a problem exists. Hrobowski v. Worthington Steel Co., 358 F.3d 473, 478 (7th Cir. 2004); Durkin v. City of Chicago, 341 F.3d 606, 612–13 (7th Cir. 2003). For reasons undisclosed in the record, Wince never reported the incident to any of his supervisors. And there was no other evidence from which a trier of fact could conclude that CBRE realized that this abuse had taken place. The district court correctly held that the incident, troubling though it was, could not form the basis of employer liability.

* * *

Although severe, [the lunch box incident] was an isolated incident that did not repeat itself, and Wince did not give CBRE the opportunity to redress it. Indeed, it seems not to have rendered his working conditions unbearable, because after it occurred Wince continued working at CBRE for another two or three years. He voluntarily resigned only after securing a comparable job at another hospital.

Id. at *4, *6.

Best Hostile Workplace Lawyer Blogs on Point:

Can I sue for a hostile work environment if the harassment is not based on a protected class?

No, to bring a hostile work environment claim under Title VII of the Civil Rights Act of 1964, the harassment must be based on a protected class, such as race, color, religion, sex, or national origin. Title VII prohibits employment discrimination based on these protected classes, and courts have held that hostile work environment claims can only be based on harassment that is motivated by the employee’s membership in one of these protected classes.

It is important to speak with an experienced employment law attorney who can evaluate your situation and advise you on the best course of action. They can help you understand your legal options and determine whether you have a viable claim under Title VII or another legal theory.

This is another reason that Wince’s claims fell short. Specifically, the Seventh Circuit Court of Appeals held as follows:

”Sly,” which Wince’s coworkers said was short for Sylvester, is a nonracial name. And as soon as Wince showed discomfort, his coworkers dropped its use. No trier of fact could conclude, on this record, that the nickname was “designed to harass and humiliate” Wince, much less in a racial way. See Hilt-Dyson, 282 F.3d at 466.

Wince further contends that Saulig told him that he was not liked and that Pierz told him that he did not have a future in the company. But Saulig’s comment was at most rude or unpleasant; “nothing … about [its] context suggests that [it was] racially motivated.” See Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101, 1106 (7th Cir. 2012); see also Yancick v. Hanna Steel Corp., 653 F.3d 532, 546 (7th Cir. 2011) (holding no discrimination where coworker’s hostile and aggressive attitude was not linked to racial animus). And Pierz’s comment did not indicate imminent termination. To the contrary, he encouraged Wince to look for other opportunities for immediate promotion elsewhere and helped him obtain approval for a project management course. These race-neutral remarks are not adverse actions.

Id. at *5.

Thus, harassment that does not qualify under Title VII for a hostile work environment claim includes any type of harassment that is not based on a protected class. Here are some examples of harassment that do not qualify under Title VII:

  1. Personal animosity: If a coworker or supervisor is simply unpleasant or difficult to work with, but their behavior is not based on a protected class, it would not be considered harassment under Title VII.
  2. Bullying: Bullying behavior that is not based on a protected class would not be considered harassment under Title VII. However, some states have anti-bullying laws that may provide legal recourse for victims of bullying.
  3. Generalized harassment: If a coworker or supervisor engages in harassing behavior that is not directed at a specific protected class, it would not qualify as harassment under Title VII. For example, if a supervisor regularly yells at employees and uses profanity, but the behavior is not based on the employee’s race, gender, or other protected class, it would not be considered harassment under Title VII.
  4. Isolated incidents: For behavior to constitute a hostile work environment, it must be severe or pervasive enough to create an abusive or hostile work environment. Isolated incidents, such as a single inappropriate comment or gesture, are typically not enough to meet this standard, even if they are based on a protected class.

Best Hostile Work Environment Lawyer Blogs on Point:

How do I know if I have a claim for a hostile work environment?

Title VII, as well as the Americans with Disabilities Act (“ADA”) and Age Discrimination in Employment Act of 1967 (“ADEA”), protect employees from being harassed and placed in a hostile work environment based on their protected classes. These laws are extremely complex to understand and apply. The best way to figure out if you may have a racially hostile work environment claim – or a hostile workplace claim based on a different protected class – is to call the right attorney and set up a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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