Discrimination takes many forms. One form is a hostile work environment created when an employee is subjected to racial slurs and a racially intimidating, hostile, or offensive working environment because of the employee’s protected characteristic –such as race, sex, or age.
To prove this discrimination, the employee must show the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.
With racial slurs, the question arises: how many racial slurs does it take to prove such a hostile work environment?
This question is particularly troubling when the employee has been called the N-word. Some courts, recognizing the N-word as one of the most odious racial epithets, have held that even one use of the N-word might be enough to create a hostile work environment. Other courts, including the Fifth Circuit Court of Appeals, disagree. While the Fifth Circuit agrees that the N-word is a highly offensive term, under its precedent, one use of the N-word alone (or with other racial slurs) may not be enough for an employee to even create a fact issue as to whether the employee was subjected to a hostile work environment.
On January 15, 2021, Robert Collier asked the U.S. Supreme Court to answer the question of how many racial slurs it takes to create a hostile work environment. Robert Collier v. Dallas County Hospital District d/b/a Parkland Hospital, Case No. 20-1004. A copy of the petition for certiorari is at: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-1004.html.
Robert Collier worked at Parkland Hospital in Dallas as an operating room aide. During his employment, he was called a “boy” by white nurses. He had to use an elevator in which the N-word was etched into the wall of an elevator. Two swastikas were painted on the wall of a storage room. Collier complained about the N-word etched in the elevator and the two swastikas to Human Resources and his department head, but no immediate action was taken. Though the N-word was eventually scratched out in the elevator, Collier believed it was done by “some black person who was tired of seeing it” because it was not done professionally. Parkland’s Operating Room Director knew of the swastikas and testified that he planned to cover them up “at some point,” but the two swastikas remained on the walls for nearly two years.
Collier was terminated and sued, arguing he had been subjected to a hostile work environment while he worked at Parkland. He lost.
The district court granted a motion for summary judgment. It held that, while the N-word is racially offensive and universally condemned and that the swastikas could be interpreted as offensive, under guiding Fifth Circuit precedent, no reasonable jury could find Parkland’s conduct to be sufficiently hostile or abusive. The Fifth Circuit affirmed this ruling.
Had Collier lived in a different part of the country where courts recognize that one use of a racial slur might create a hostile work environment, Collier might have won his lawsuit.
Now, Collier and his attorneys are asking the Supreme Court to answer these questions:
- Whether an employee’s exposure to the N-word in the workplace is severe enough to justify sending his hostile work environment claim to a jury?
- Whether and in what circumstances racial epithets in the workplace are “extremely serious” incidents that are sufficient to create a hostile work environment.
We do not know if the Supreme Court will take this case and answer these questions. However, given the split of authority between the circuits, getting clear answers to these questions would benefit both companies and employees.