Yes, A Single Egregious Racially Offensive Term Can Defeat Summary Judgment
By Laura L. Rubenstein, Esq.
Wright, Constable & Skeen, L.L.P
A momentary lapse of judgment, a word said in the heat of the moment – these single incidents can now cause big problems for employers. Employers stand warned: More litigation lay ahead. Two recent decisions by the Second Circuit further outlined what is required to prove a hostile work environment claim under Title VII.
In Daniel v. T&M Protection Resources, LLC, 2017 WL 1476598 (April 25, 2017) and Ahmed v. Astoria Bank, 2017 WL 1906726 (May 9, 2017), the Second Circuit seemed to reverse long standing precedents which required a pattern or a series of incidents in order for a workplace to be deemed a hostile work environment under Title VII. In Daniel, the Court ruled that even a single racial slur, if “sufficiently severe,” may be enough to create a hostile work environment. In Ahmed, the Court ruled that “several” allegedly demeaning comments were sufficient to defeat a summary judgment ruling. Both of these decisions raise red flags for employers who may find efforts to dismiss hostile work environment claims under Title VII significantly harder.
In Daniel v. T & M Protection Resources, the plaintiff claimed that his supervisor, on one occasion, used the term “you fu**ing n****r.” Reversing precedent that instructed creating a hostile work environment required “a steady barrage of opprobrious racial comments,” the Court found that once was enough. The court explained that the long–standing requirement of a “steady barrage” did not close the door on the possibility that one remark, albeit an especially heinous one, could suffice to create a hostile work environment under Title VII. The Court reasoned that “’perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet . . . by a supervisor in the presence of his subordinates.’”
In Ahmed v. Astoria Bank, the plaintiff claimed that she faced a hostile work environment as an Egyptian and a Muslim. She based her complaint on two instances in which her supervisor commented about her hijab. Ahmed reported that her supervisors “demeaned [her] race, ethnicity, and religion ‘[o]n several occasions.’” The Second Circuit reversed summary judgment in her favor.
The message is clear: A steady barrage of discriminatory remarks may no longer be required for a plaintiff to be successful in taking a hostile work environment claim to trial. Rather, a single word may be enough. Whether such potential mitigating factors as swift remedial action by the employer and the level of authority of the supervisor making the remarks might help mitigate liability were not addressed in these cases, and even if these factors did have some bearing, they would not diminish the importance of the message these cases send, loud and clear: Employers must be on increased alert and pro-actively work to effect civility and sensitivity to language in the workplace.
So how can employers be better protected?
First, employers would be wise to continue to make emphatically clear in anti-harassment training – to both managers and employees – that all employees, and especially those in management, must be careful about their choice of words in the workplace. It is important to be specific, starting with identifying those words and phrases that under any circumstances have no place in the workplace, on or off-site, whether in formal interchanges during work hours or casual conversations before or after hours, or during breaks.
Second, every alleged comment that seems to violate company policy (even if made just once) should be swiftly investigated and the rules prohibiting such utterances should be strictly enforced and disciplined, up to and including even the possibility of termination.
Words are powerful. They can deliver an immediate sting and their ripple effect can poison an entire workplace, a reality whose importance the federal appellate court has made starkly clear in the message they sent in Ahmed and Daniel. Employers must convey just as forcefully and clearly a similar message to their managers and other employees so that sensitivity becomes not just a matter of following firm policy but an ingrained norm. With some federal courts raising the bar on cases asking for summary judgment in dismissing hostile work environment claims, it is important for employers to reinforce the message through regular training and investigation, consistent enforcement, and adherence to the company’s written discipline process so that incidents like the ones addressed in Daniel and Ahmed don’t happen in your workplace.
|Throughout her year legal career in Maryland and D.C., Laura Rubenstein has spent countless hours counseling local and national employers on all aspects of workplace legal issues. She represents businesses and nonprofit organizations in a wide range of matters, including investigating sensitive and confidential employment claims, negotiating employment and severance agreements, defending harassment, discrimination and retaliation claims and handling wage and hour lawsuits.
Laura represents clients before administrative agencies including the DOL, EEOC, NLRB, OFCCP, DLLR, among others. She listens and counsels on how to address workplace accommodations, employee theft, workplace violence, and leaves of absences and negotiates and drafts documents critical to the client’s individual needs. In addition to her support of many non-profits, including sitting on various Boards and committees in the community, Laura is an accomplished speaker, writer and is a certified mediator.