Can a Single Slur Create a Hostile Work Environment?
Some hostile work environment claims are a little iffy. They are filled with suggestion or innuendo. The summary judgment phase in such claims might be a close call.
Placide Ayissi-Etoh's hostile work environment claim against Fannie Mae is not one of those claims, according to the D.C. Circuit Court of Appeals.
Ayissi-Etoh's lawsuit alleges two disturbing exchanges with white supervisors at Fannie Mae. In one, Ayissi-Etoh asked why he hadn't received a raise along with a promotion when his peers who received the same promotion were given significant salary increases. He claims that Jacqueline Wagner, Fannie Mae's Chief Audit Executive, told him, "For a young black man smart like you, we are happy to have your expertise; I think I'm already paying you a lot of money."
In the second exchange, Ayissi-Etoh met with Thomas Cooper, a Vice President of Internal Audit at Fannie Mae, to discuss why he was performing staff-level work despite being promoted Team Lead. Ayissi-Etoh alleged that Cooper yelled, "Get out of my office n*****." (Even after Ayissi-Etoh reported Cooper's alleged outburst, Fannie Mae delayed separating the two from having to work together.)
Of course, Wagner and Cooper deny making the alleged comments. So that means there's a genuine issue of material fact and the case goes to trial, right?
The district court didn't see it that way, and granted summary judgment for the Fannie Mae defendants.
The district court found that a "hostile work environment" exists only when the "workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Noting that an isolated incident rarely establishes a hostile working environment, the court decided that no reasonable jury could find a hostile work environment claim based on Cooper's single utterance - even though Cooper was Ayissi-Etoh's superior and directly addressed him with the slur.
Last week, the D.C. Circuit Court of Appeals revived Ayissi-Etoh's claims, concluding that a reasonable jury could find Cooper and Wagner's behavior sufficiently severe or pervasive as to create a hostile work environment. Though the appellate court reasoned that the single incident in Cooper's office "might well have been sufficient to establish a hostile work environment," it also found that Ayissi-Etoh's case was bolstered by allegations regarding the "young black man" comment and Fannie Mae's reported three-month delay in separating Cooper and Ayissi-Etoh.
In a concurring opinion, Judge Brett Kavanaugh wrote that he believed the alleged Cooper outburst, by itself, was enough to make Ayissi-Etoh's case.
It may be difficult to fully catalogue the various verbal insults and epithets that by themselves could create a hostile work environment. And there may be close cases at the margins. But, in my view, being called the n-word by a supervisor - as Ayissi-Etoh alleges happened to him - suffices by itself to establish a racially hostile work environment.
Given the D.C. Circuit's influence on the courts, it will be interesting to see if other judges flock to Judge Kavanaugh's single-egregious-incident standard.
- Has My Boss Created Hostile Work Environment? (FindLaw's Law and Daily Life)
- Court Revives Harassment Claim Based on Saucy Comments (FindLaw's Second Circuit Blog)
- Age Discrimination Supports Hostile Work Environment Claim (FindLaw's Fifth Circuit Blog)