Employment Law Daily Title VII plaintiff need not show ‘hellish’ workplace; supervisor’s use of n-word raised triable claim
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Tuesday, February 26, 2019

Title VII plaintiff need not show ‘hellish’ workplace; supervisor’s use of n-word raised triable claim

By Lorene D. Park, J.D.

A lower court erred by relying on a “hellish” standard in finding no actionable hostile work environment and by failing to recognize the difference between coworker hostility and a supervisor’s racial hostility in using the n-word, which was enough to support a Title VII claim.

Reversing summary judgment on an African-American employee’s race-based hostile work environment claim, the Seventh Circuit found that he raised triable issues based on testimony that his supervisor on three occasions used racial epithets, twice referring to him with the n-word. Though infrequent, a jury could find that use of the n-word by a supervisor, as opposed to coworkers, was sufficiently severe to support his claim. The employee waived his remaining claims by not addressing them below in response to the employer’s summary judgment motion (Gates v. Board of Education of the City of Chicago, February 20, 2019, Hamilton, D.).

New supervisor. The employee, who has been a building engineer with the Chicago Board of Education since 2004, was hired in 2010 to fill the sole engineer position at a technology academy. He reported to the school principal until 2012, when he was placed under a facilities engineer. The supervisor oversaw work at 16 schools, so the employee only saw him around three times per month.

Starting in June 2013, the employee began to have problems with the supervisor, who told him “you will not be promoted because of your age and because you’re black.” The employee still applied for a promotion, but the supervisor allegedly prevented him from getting a better job.

Racist epithets. As the summer progressed, the supervisor’s behavior became increasingly offensive. The employee testified that he uttered racial epithets, at one point passing gas in a meeting and saying that when someone farts and a black guy is there, “you call that a shit-sniffing ni**er.” According to the employee, he reported this to the supervisor’s supervisor, who told the employee to keep that encounter to himself.

In November 2013, the supervisor allegedly came to the school, yelled at the employee, and told him “you will kiss the principal’s ass and make her happy” or the supervisor would write his “black ass up.” Then in a March 2014 meeting, the supervisor got angry when the employee refused to sit down and said “I’m tired of you people.” When the employee asked to whom he was referring, the supervisor responded “ni**er, you know what I’m talking about.”

The supervisor wrote the employee up for insubordination after this incident, and had previously written him up as well. Before the scheduled pre-disciplinary hearing, the employee was injured and went on workers’ comp. No formal disciplinary action was taken and, when the employee returned in November 2014, he was assigned to a group of traveling building engineers who work at different schools. In that position, he earned more than he had earned before his leave.

Title VII doesn’t impose “hellish” standard. The employee filed suit alleging age and race discrimination as well as retaliation. Granting summary judgment against his race-based hostile work environment claim, the lower court found that the supervisor’s racist comments were not severe or pervasive enough to support a Title VII claim. The court expressed the view that a “workplace that is actionable is one that is ‘hellish.’”

Disagreeing, the Seventh Circuit explained that it had rejected the so-called “hellish” standard, which is inconsistent with the Supreme Court’s ruling in Harris v. Forklift Systems, Inc., that “Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will distract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers . . .” Thus, explained the Seventh Circuit, “something short of the Ninth Ring” may violate Title VII.

Supervisor’s racist language raised triable issue. Here, three incidents of racial harassment were key: (1) the 2013 “joke” in which the supervisor called the employee the n-word; (2) the 2013 meeting in which he threatened to write the employee’s “black ass” up; and (3) the 2014 “you people” comment in which the supervisor again addressed the employee using the n-word. While the district court conclude that “one or two utterances of the N-word” was not severe or pervasive, its analysis was flawed because it overlooked the fact that the case here involved a supervisor uttering the offensive word, not coworkers.

That distinction is critical, said the appeals court, which has “repeatedly treated a supervisor’s use of racially toxic language in the workplace as much more serious than a coworker’s.” Here, it was enough to raise a triable issue. Although the supervisor’s conduct was relatively infrequent and was not physically threatening or humiliating in a public setting, a reasonable jury could find that it was severe and humiliating. A jury could also find that the supervisor’s racist remarks interfered with the employee’s performance. For one thing, he testified that he had to use a month of sick leave in December 2013 to seek medical treatment for homicidal thoughts he was experiencing toward his supervisor due to the discrimination he experienced.

Other claims were forfeited. Though summary judgment was reversed on his race-based hostile environment claim, he waived or forfeited all of his remaining claims by not addressing them below in opposition to the employer’s summary judgment motion.

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