Clarifying its earlier rulings, the Court of Appeals for the Third Circuit (which includes Pennsylvania) has ruled that a single utterance of a racial slur at the workplace could support a claim for harassment.
In this case, two African-American males (plaintiffs) brought suit challenging their firing on the basis that their termination was discriminatory and racially motivated.
The employees specifically alleged that when they arrived at work on various occasions, an anonymous note was written on the sign-in sheets: “don’t be black on the right of way.” They also asserted that while they had more experience working on pipelines than the non-African-American workers, they were only permitted to clean the pipelines rather than work on them. Significantly, a supervisor of these two African-American employees used a severe racial slur to threaten firing if a specific project was not completed to his satisfaction.
The two employees reported this offensive language to a superior and two weeks later they were fired without explanation. After being rehired they were again terminated for “lack of work”.
The suit filed in federal District Court specifically alleged unlawful harassment, discrimination and retaliation. The District Court dismissed the harassment claim, holding that the facts in the complaint did not support a finding that the alleged harassment was “pervasive and regular”. The Court also dismissed the related claims of discrimination and retaliation.
The Court of Appeals reversed the ruling of the District Court. With respect to the harassment claim, the Court held that a claim could be made where an employee is “subjected to a hostile work environment in which there was discrimination that was ‘severe or pervasive.’” The Court acknowledged that its precedent has been inconsistent and that it had used a “severe or pervasive” standard as well as “pervasive and regular” and “severe and pervasive” standards. The “severe or pervasive” standard adopted by the Court follows the standard set forth by the United States Supreme Court.
The adoption of this standard means that in certain cases an isolated act of discrimination (including the use of a racial epithet) could create a hostile work environment and support a claim of harassment. In other words, an isolated act might be deemed severe even if not pervasive.
Analyzing the allegations of the case before it, the Court of Appeals determined that the lower court was incorrect in dismissing outright the harassment claim (as well as the discrimination and retaliation claims) and sent the matter back to the lower court for further proceedings.
Employers must therefore note that even a single isolated incident could create liability for a claim of harassment or discrimination. This case highlights the importance of enforcing a civil tone in the workplace, and enforcing policies against such language. It also demonstrates that sensitivity on the part of managers and HR employees to the impact of certain slurs & epithets is a key risk management tool.