Supervisor’s Racial Actions Don’t Need to be ‘Hellish’ to Qualify as Hostile
A supervisor’s use of racial epithets and harassing behavior may create a racially hostile work environment even when a coworker’s actions would not. A recent case from the U.S. 7th Circuit Court of Appeals (which has jurisdiction over Wisconsin employers) explains why the threshold for a hostile work environment is lower when a supervisor is the harasser.
Fred Gates is an African-American male who worked as a building engineer with the Chicago Board of Education starting in 2004. In 2012, Rafael Rivera became Gates’ supervisor. Because of the volume of schools that Rivera supervised, he and Gates saw each other in person about three times per month.
According to Gates, Rivera’s offensive behavior began in the summer of 2013. At a performance meeting, Rivera told him, “You will not be promoted because of your age and because you’re black.” Gates applied for a promotion and was denied. On another occasion, Rivera told a joke to Gates, referring to him as the N-word.
Gates testified he complained to Rivera’s supervisor at the time, but was told to keep quiet. Gates claimed Rivera told him a few months later to “kiss the principal’s ass to make her happy” or else Rivera would write his “black ass up.” Gates testified that Rivera uttered racial epithets against him on other occasions, including a second incident in which he referred to Gates using the N-word.
Over the span of a year, Gates took multiple leaves of absences from work, including bereavement leave for his father’s death, Family and Medical Leave Act (FMLA) leave to care for his grandfather, a nearly month-long military leave, worker’s compensation leave, and a one-month sick leave to seek medical attention for homicidal thoughts he was experiencing toward Rivera and other school officials, stemming from the discrimination he faced at work. When he returned from his worker’s comp leave in November 2014, he was reassigned to another position.
Gates filed a federal court lawsuit alleging race discrimination under Title VII of the Civil Rights Act of 1964. He also alleged age discrimination and retaliation, based on the denial of a promotion and negative performance reviews he received. The board of education asked the district court to grant summary judgment (i.e., dismiss the case even before it went to trial). The court agreed, determining that Rivera’s comments weren’t severe or pervasive enough to rise to the level of a hostile work environment and dismissing all claims.
Gates appealed only the race discrimination decision. On appeal, the 7th Circuit reversed the district court’s decision because the lower court incorrectly applied the law when a supervisor’s actions are involved.
What is Racially Hostile Work Environment?
To prevail on a Title VII claim, an individual must prove (1) he is a member of a protected class, (2) he has been subjected to some form of adverse employment action (or a hostile work environment), and (3) the employer took the adverse action on account of his membership in the protected class. Subjecting an employee to a hostile work environment is considered an adverse action (“unlawful employment practice”) under Title VII.
To prove an employment environment was sufficiently hostile, an individual must show (1) he was subjected to unwelcome harassment, (2) the conduct was based on race (or another protected category), (3) it was severe or pervasive to a degree that altered the conditions of employment and created a hostile or abusive work environment, and (4) there is a basis for employer liability.
Evidence that the workplace was both subjectively and objectively offensive may satisfy the first and third prongs. Some factors that may also be relevant include the severity and frequency of the alleged conduct, whether it was physically threatening or humiliating (versus merely offensive), and whether it unreasonably interfered with the employee’s work performance.
If Workplace is Hellish, Harassment Has Already Gone Too Far
The 7th Circuit rejected the district court’s reasoning that “the threshold for plaintiffs is high, as the workplace that is actionable is one that is hellish.” Although a hellish workplace would certainly qualify as hostile, the appellate court clarified that the employee “need not show a descent into the Inferno.” Rather, a hostile work environment may occur long before the harassing conduct leads to a nervous breakdown.
A discriminatorily abusive work environment can detract from an employee’s job performance, discourage him from remaining on the job, or keep him from advancing in his career, even if the abuse doesn’t seriously affect his psychological well-being. A hellish environment presents a more egregious example of harassment but doesn’t define the boundary of what is legally actionable.
Instead, the 7th Circuit focused on the third prong of the hostile work environment standard—whether the conduct was sufficiently severe or pervasive to alter the conditions of Gates’ work environment. His argument centered primarily around three incidents within a six-month time frame in which Rivera used racially charged language—two of which involved the N-word.
The 7th Circuit acknowledged courts have historically determined that one or two utterances of the N-word by a coworker typically aren’t severe or pervasive enough to rise to the level of a hostile work environment. However, an utterance made by a supervisor, as opposed to a mere coworker, is a critical distinction that cannot be ignored.
The 7th Circuit explained that a supervisor’s use of racially charged comments in the workplace is much more serious than a coworker’s use. The supervisor’s actions and words have a particularly severe impact on the work environment. That is especially true when the comments are made directly to, or in the presence of, the affected employee. A hostile work environment can exist even if the employee hears about the offensive language from a supervisor secondhand.
Next, the 7th Circuit rejected the board of education’s argument that the harassment was too infrequent to be pervasive. Again, the court highlighted the significance that the statements were made by a supervisor, directly to Gates, using an unambiguous racial epithet that falls on the “more severe” end of the spectrum. The court found that although the conduct was relatively infrequent and not physically threatening or publicly humiliating, it was nevertheless severe and humiliating to a degree that interfered with Gates’ performance and affected his work environment.
Interestingly, the 7th Circuit noted that if the facts were the same, except that a coworker (rather than a supervisor) used the racial slurs, it likely would have reached a different conclusion in the case.
The 7th Circuit sent the case back down to the district court to proceed to a jury trial. Gates v. Board of Education of Chicago, No. 17-3143 (7th Cir., Feb. 20, 2019).
This decision highlights the different standards that apply to supervisors and coworkers. Certain actions and words from a supervisor may create a hostile work environment, even if the same behavior from a coworker would not. Here are some things you should do:
- Review your training materials, and instruct your supervisors that with power comes great responsibility and an even more stringent standard of decorum.
- Be sure you have comprehensive policies in place to prohibit all forms of harassment based on any protected classification under federal, state, and local laws, and make the policy available to all employees.
- Establish multiple reporting avenues so employees can report harassment even if the conduct is coming from a supervisor.
You must take reasonable steps to prevent and remediate harassment and may want to consider diversity training if appropriate.
This article, slightly modified to note recent updates, was featured in the April 2019 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.