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Can One Racial Slur Lead to Employment Liability?


August 22, 2017

The Third Circuit Court of Appeals Recently Addressed What Constitutes Harassment in the Workplace As It Could Lead To Employment Liability

The Third Circuit Court of Appeals recently addressed what constitutes harassment in the workplace. In Castleberry v. STI Group, the federal appeals court held that plaintiffs need to demonstrate that harassment is “severe or pervasive,” but not both. Accordingly, a single racially-charged slur could rise to the level of harassment.

Can One Racial Slur Lead To Employment Liability?

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Allegations of Workplace Harassment

Atron Castleberry and John Brown, both African-American, were fired by Defendant STI Group, a staffing-placement agency (and thus a subcontractor) for Defendant Chesapeake Energy Corporation, an oil and natural gas company. Castleberry and Brown sued under 42 U.S.C. § 1981 alleging that their termination was racially motivated. The federal civil rights statute prohibits discrimination against an employee because of the person’s race.

According to their employment complaint, when the plaintiffs arrived at work on several occasions, someone had anonymously written “don’t be black on the right of way” on the sign-in sheets. They also alleged that although they have significant experience working on pipelines (and more so than their non-African-American co-workers), they were only permitted to clean around the pipelines rather than work on them. They further claimed that, when working on a fence-removal project, a supervisor told Castleberry and his coworkers that if they had “nigger- rigged” the fence, they would be fired. Seven coworkers confirmed that occurred.

Following this last incident, the plaintiffs reported the discriminatory remarks to a superior. They were both fired two weeks later without explanation. Although both workers were rehired shortly thereafter, they were terminated again for “lack of work.” The plaintiffs subsequently filed their employment lawsuit.

The trial court dismissed the plaintiffs’ claims of harassment, discrimination, and retaliation. With regard to the harassment claim, the Court determined it could not survive a motion to dismiss because the facts pled did not support a finding that the alleged harassment was “pervasive and regular,” which it deemed a requisite element to state a claim under § 1981.

Third Circuit Establishes Pleading Requirements

The Third Circuit held that the plaintiffs were only required to plead that they were subjected to a hostile work environment in which there was discrimination that was “severe or pervasive.” In reaching, its decision the court acknowledged that its precedent is inconsistent.

In some cases, the Third Circuit had held that to prevail on a harassment or hostile work environment claim, the plaintiff “must establish that . . . the discrimination was severe or pervasive.” While, in others, the court held that a plaintiff making such a claim must establish that the discrimination is “pervasive and regular.” To resolve the conflict, the Third Circuit held that the correct standard is “severe or pervasive.”

“The Supreme Court’s decision to adopt the ‘severe or pervasive’ standard—thereby abandoning a ‘regular’ requirement—lends support that an isolated incident of discrimination (if severe) can suffice to state a claim for harassment,” Judge Thomas Ambro noted. “Otherwise why create a disjunctive standard where alleged ‘severe’ conduct—even if not at all ‘pervasive’—can establish a plaintiff’s harassment clam?”

The Third Circuit next turned to whether the supervisor’s single use of the “n- word” is adequately “severe” and if one isolated incident is sufficient to state a claim under that standard. The panel answered in the affirmative.

“Here plaintiffs alleged that their supervisor used a racially charged slur in front of them and their non-African-American co-workers,” Judge Ambro said. “Within the same breath, the use of this word was accompanied by threats of termination (which ultimately occurred). This constitutes severe conduct that could create a hostile work environment.”

Message for New Jersey Employers

The Third Circuit’s decision highlights the importance of establishing strong anti-harassment policies and training managers to avoid any conduct that could be construed as discriminatory. Even an isolated incident, if particularly egregious, could lead to costly liability.

Are you a New Jersey employer? Do you have any questions? Would you like to discuss the matter further? If so, please contact me, Sean Dias, at 201-806-3364.

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