In David Lynch’s film Dune, a character proclaims that the protagonist “can kill with a word.” Although not quite as dramatic, the United States Court of Appeals for the Third Circuit recently held that an employer can violate federal civil rights statutes with a word. Specifically, in Castleberry v. STI Group, the Third Circuit held that a single use of the “n-word” is sufficiently severe to establish a hostile work environment for purposes of a racial harassment claim. The court held that in hostile work environment cases, the proper legal standard is not whether the conduct in question is “pervasive and regular,” but rather “severe or pervasive.” Thus, a single incident, if severe enough, can, in and of itself, create an actionable hostile work environment claim.
The plaintiffs in Castleberry were two black laborers who were supervised by managers from both Chesapeake Energy Corporation and STI Group, a staffing agency that the court deemed a Chesapeake subcontractor. Upon the plaintiffs’ assignment to a job site, the only other black male on the crew was fired. On several occasions thereafter, someone had written “don’t be black on the right of way” on the sign-in sheets. Additionally, the plaintiffs were not permitted to work on the actual pipelines — despite the fact that they had more experience working on pipelines than their coworkers — and were instead relegated to cleaning up around them. Furthermore, when working on a fence-removal project, the plaintiffs alleged that a supervisor told the first-named plaintiff, Atron Castleberry, “that if they had ‘n—– rigged’ the fence, they would be fired,” an incident that seven coworkers confirmed. Within two weeks of reporting this latter incident, the plaintiffs were terminated without explanation. They were rehired, but then fired again for “lack of work.”
The plaintiffs filed suit under 42 U.S.C. §1981, a federal civil rights statute which provides in relevant part: “All persons . . . shall have the same right in every State and Territory to make and enforce contracts . . . to the full and equal benefit of all laws . . . as is enjoyed by white citizens.” The trial court, however, dismissed the plaintiffs’ claims, holding that they had failed to plead that the discrimination was “pervasive and regular.” On appeal, the Third Circuit reversed. Acknowledging its own inconsistent body of law, the appellate court held that the proper test for alleging, and ultimately proving, a violation of federal civil rights laws based upon a hostile work environment is “severe or pervasive.”
Thus, that standard having been established, the specific question before the court was “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.” Having raised the question, the Third Circuit promptly answered it, holding that “it is clear that one such instance can suffice to state a claim.” This is particularly true when, as in this case, “the use of the word was accompanied by threats of termination (which ultimately occurred).” To put it succinctly: “This constitutes severe conduct that could create a hostile work environment.”
WHAT DOES IT MEAN?
In reaching its decision, the Third Circuit followed similar outcomes in the Fourth, Seventh, Eleventh, and District of Columbia Circuits. As such, Castleberry adds impetus for other courts to reach the same conclusion, thereby moving away from the traditional perspective that stray or singular comments were generally insufficient to establish a harassment claim based upon a hostile work environment. Furthermore, although there are few words more pernicious or negatively charged than the “n-word,” there is little reason to think that courts would not apply similar reasoning to gender-based, religious, disability or other forms of discrimination claims involving especially egregious epithets.
It is, therefore, incumbent upon employers to emphasize – and actually enforce – the zero-tolerance aspect of their antidiscrimination policies. Employers must not succumb to the temptation to downplay or dismiss stray comments as aberrational or unintentional and instead wait for reports of further misconduct. As Castleberry illustrates, one incident, if severe, is enough to warrant employer action, including discharge of the offending employee; the failure to act, or retaliating for a complaint, may expose the employer to liability. Contrary to the wisdom shared with us as children, in the workplace, words – or in this case, a single word – can indeed be hurtful, not only to their intended target, but to an employer as well.
To read the full decision, please click here.