Employment Law Daily Two comments in three months, e.g. ‘these are not my black people,’ won’t support hostile environment claim
News
Monday, March 11, 2019

Two comments in three months, e.g. ‘these are not my black people,’ won’t support hostile environment claim

By Kathleen Kapusta, J.D.

Rejecting the employee’s assertion that it should treat the coworker’s comment as if he used the “n-word,” the court explained that even among unambiguously racial epithets, the n-word has been viewed as a singularly offensive manifestation of racial animus.

Granting summary judgment against the Title VII and Section 1981 race-based harassment claims of a correctional officer who identified as “half black and half Indian,” a federal court in Illinois found that two alleged incidents in her almost three decades of employment—a coworker’s remark about detainees that “Those are your people. Those are not my black people” and his comment three months later that “You’re all black”—were isolated and infrequent. And given that the employer assigned the coworker to a different pod after the employee complained, she failed to show it was negligent in discovering and remedying the harassment (Walker-Dabner v. Dart, March 5, 2019, Dow, R., Jr.).

Those are your people. Employed by the Cook County Sheriff’s Office since 1991, the correctional officer alleged that when she went to the “A pod” in July 2014 to transport detainees to the medical unit, 15 detainees were yelling for her attention, telling her that the correctional officer standing outside the door would not give them toothpaste or toilet paper or allow them to go to recreation. When the employee questioned the correctional officer, he purportedly responded “Those are your people. Those are not my black people.”

Follow the chain of command. After taking the detainees to the dispensary, the employee went to her locker and cried. She then took the rest of the day off and went home. She initially reported the incident to a union steward, who told her it would do no good to file a grievance. She later reported the incident to the superintendent, who purportedly told her to follow the chain of command. She ultimately wrote a memo regarding the incident and the coworker apologized for his comment being misunderstood as a racist or biased statement. Although he was not disciplined, he was assigned to a different pod and to different shifts than the employee.

You’re all black. The employee later claimed, in a deposition, that three months after the first incident, the coworker walked up to her in the parking lot and said “You’re all black.” She never reported this comment, however.

Same as the n-word? At issue regarding her hostile work environment claim was whether the alleged harassment was severe or pervasive. Although the employee argued that the court should treat the coworker’s comment that these are not my black people as if he used the “n-word,” the court was unconvinced, noting that even among unambiguously racial epithets, the n-word had been viewed as a singularly offensive manifestation of racial animus. But even if he had used the n-word, said the court, one or two utterances have not been held to be severe enough to rise to the level of establishing liability for coworker harassment under Title VII.

Isolated and infrequent. Turning to the specific conduct at issue, the court noted that she identified only two incidents of harassment directed toward her during her almost three decades of employment. Not only was this infrequent, the comments were not physically threatening or humiliating, said the court, finding that they were not sufficient to demonstrate a hostile work environment.

And while the employee argued that she was so distraught after the first incident, she went home where she remained for two days and that the comments exacerbated a pre-existing mental condition, the court explained that while the comments were unacceptable, her use of vacation time did not show the behavior unreasonably interfered with her ability to do her job. In fact, the court pointed out, the sheriff’s office took significant steps to isolate the employee from her coworker so she could work without seeing him.

Employer liability. Nor could a reasonable jury find a basis to hold the employer liable for the coworker’s conduct as there was no evidence of negligence in the discovery or remediation of the alleged harassment. The same day the employee filed her memo regarding the incident, the superintendent spoke with her and a shift commander questioned the coworker about the incident. The coworker then apologized and was assigned to a different pod and different shifts than the employee.

Although she claimed he subsequently made another comment to her in the parking lot, she never reported this incident to anyone and, said the court, “an employer cannot be held liable for events of which it has no knowledge.” As to the employee’s assertion that when she first told the supervisor about the incident, he told her to follow the chain of command, he was entitled to ask her to follow official policy, and in any event, he appeared to take significant steps within of a week of their informal conversation to ensure that the harassment would not occur again.

Interested in submitting an article?

Submit your information to us today!

Learn More
Employment Law Daily

Employment Law Daily: Breaking legal news at your fingertips

Sign up today for your free trial to this daily reporting service created by attorneys, for attorneys. Stay up to date on employment legal matters with same-day coverage of breaking news, court decisions, legislation, and regulatory activity with easy access through email or mobile app.

Free Trial Learn More