Does One Noose In The Workplace Constitute A Hostile Work Environment? If Not, How Many?

The issue today is how many times must an African-American employee endure the sight of a hanging noose, or suffer other crude and offensive racial or other epithets, for the situation to become a hostile work environment and racial harassment?

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Under existing caselaw, one isolated incident is generally not enough to constitute a hostile work environment or racial harassment, unless it is extremely serious.  Is one “N-word” sufficiently serious?  One noose?

Well, an African-American employee, just turned back by a federal appeals court because a noose placed in his workplace was done “only” once, is seeking Supreme Court review, according to Law 360.  His argument?  A single noose is so noxious, so egregious to an African American, as to go well beyond the high bar of “extremely serious.”

Is A Single Noose Serious Enough To Be Harassment?

How many nooses make up a “serious” case of racial harassment?  One? Two? Three?

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I asked this years ago, when a number of federal courts answered this question: Once is not enough.

Try this thought experiment:  To an Auschwitz survivor, is one swastika in the workplace enough? Two? Three?   And what about the word “Hitler” scrawled on a work locker?   Is that “serious” enough?

Whenever offensive racial slurs against black employees are uttered in the workplace, it seems that the N-word is always first among the slurs.  Always.  And in my review of the cases, second place in the frequency of racial slurs or threats goes to hanging nooses in the workplace.

After reviewing a particularly heinous case, I asked on June 1st whether there “Can Be A Much Worse Case of Race and National Origin Harassment?”

In that (newly-settled) EEOC case, “it seems that a white manager harassed a Filipino-American laborer who was employed by a North Dakota oilfield service company – using as foul and racist language as I’ve seen – at least in a while. … According to the EEOC, shortly after he began working, the employee “was harassed by a white manager because of his race and national origin. The harassment included the manager calling Clark a “non-white m—-f—-r,” “non-white guy,” “spic,” “n—-r,” “monkey” and “ape.” On one occasion, the manager urinated on Clark’s legs as he worked under a truck in the shop.”

I noted that “Readers may recognize some of the same language and racial tropes that have been directed at African-American employees in the many cases that I have reported about.   Seems like the only thing missing is the ever-ready-to-be-displayed noose.”

No Magic Number Of Slurs

I wrote previously about a federal court which in 2014 dealt with a black janitor who claimed that he was subjected to race-based harassment by co-workers who called him “boy,” “black n—-r,” and treated him harshly.  The Court held that the “hostile work environment claim fails because he did not provide sufficient evidence for a reasonable juror to conclude that he was subjected to harassing conduct that was severe or pervasive.”

The Court did state, however, that “[o]ne instance of conduct that is sufficiently severe may be enough,” and that “[w]e have stated that while there is no ‘magic number of slurs’ that indicates a hostile work environment, an “unambiguously racial epithet falls on the ‘more severe’ end of the spectrum.”

One N-Word Is Enough!

Despite the cases which have ruled that “once is not enough,” I wrote about a 2013 decision from a federal appeals court in Washington, DC (of which Judge Merrick Garland was on the panel) which held that a single use of the “N-word” was enough to make out a hostile work environment because it is so “deeply offensive.”

The Court held that: “As other courts have observed, ‘perhaps no single act can more quickly alter the conditions of employment’ than ‘the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor.” … This single incident might well have been sufficient to establish a hostile work environment.”

If One N-Word Is Severe, What About One Noose?

Now comes plaintiff, an employee at the U. of California at SF in the facilities maintenance department, who alleged that the Facilities Maintenance Assistant Supervisor hung a noose in an inventory warehouse.  He filed suit for hostile work environment, but summary judgment was granted against him.

On appeal, the federal appeals court ruled that since he claimed “only” one such incident, he “has not shown ‘conduct [that] was sufficiently severe or pervasive to alter the conditions of [his] employment.’”

The Court said that he “has not provided any evidence, other than his own conclusory allegations, that shows any racial motive behind the noose incident or that the noose was directed at him personally.”

He now seeks review by the highest court in the land.

Where will this case go in the polarized environment in which the Court sits?

Ethnic Male Portrait

Takeaway: How many nooses is enough?

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]