Just before Christmas, the Tenth Circuit Court of Appeal reversed a district court determination granting summary judgment in favor of an employer in a race based hostile work environment harassment case. In so doing, the Court restated a rule that all employers should know and take to heart: What you meant by what you say matters a whole lot less than the effect of what you said has in the workplace.
In Lounds v. Lincare, Inc., a former employee sued a provider of at home medical services for, among other things, illegal “hostile environment” harassment based on her race. Plaintiff was an African American and she alleged a series of race conscious remarks beginning almost from the first date of her employment. When harassment claims are based on a hostile environment theory, they often read like a litany of race conscious and boorish remarks. In this case, the Plaintiff’s female supervisor allegedly referred to her as a “cute black girl” and misstated her name variously as “Shaquita” and “Shaniqua”. The supervisor instructed plaintiff to give a difficult customer “attitude” and to “get ghetto” with him. The supervisor was overheard referring to the telephone customer by stating that she “imagined that he was a big African American man.” On another occasion, the plaintiff and other employees were discussing an African American man who had recently killed his wife. One of the Plaintiff’s co-workers stated “we need to bring back lynching, because we have enough trees.” The co-worker then spoke to plaintiff and attempted to clarify that he was “not racist, and there was nothing wrong with lynching,” before he approached her to say “I’m not trying to offend you. It’s not like I said let’s go down to Ninth and Grove [the black neighborhood] and drag every black person with a noose, tie them to a truck and drag them after hanging them.” When plaintiff objected to this commentary, the coworker stated that she should not be so sensitive. Later, another co-worker entered the office, announced that she had “just come back from the hood,” seeing a patient, and began chanting, “BOOM!” and “BOOM [N Word]”.
The District Court granted summary judgment on the harassment claim and an associated retaliation claim. The District Court determined that no reasonable jury could have found the alleged race based harassment sufficiently severe or pervasive to sustain a hostile work environment claim. Much of the Court’s reasoning in granting the motion for summary judgment was based upon undisputed statements from the persons who had made the racially conscious remarks that they did not intend the remarks to be racist or offensive. The Court, while noting that “we have recognized that Title VII does not establish a general civility code for the workplace” and that a Plaintiff may not predicate a hostile work environment claim on “run of the mill” boorish, juvenile or annoying behavior,” the Court noted that where 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,” a motion for summary judgment should be denied.
In determining whether a work environment is sufficiently hostile to survive summary judgment, courts assess whether the work environment is “both subjectively and objectively hostile or abusive.” In other words, it is not enough that a particular plaintiff deems the work environment hostile; it must also be of the character that it would be deemed hostile by a reasonable employee under the same or similar circumstances.” Under this test, the Court held, the “Plaintiff must show more than a few isolated incidents of racial enmity.” “Instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.”
The appeals court specifically rejected the notion that the co-worker’s explanation of his comments about lynching and the use of the “N Word” must be examined not based upon the intent of the speaker but the effect of those words in creating the workplace environment. This is a lesson that employers cannot understand too thoroughly or too well: What people intend or mean by their words is far less important in harassment cases than whether or not (seen objectively and in the conditions of the workplace as a whole), the statements create a hostile workplace for which the employer may be held liable.