Racial Harassment—A Case Study On “Severe or Pervasive”

By: Amy Epstein Gluck

Use of the “n-word” in the workplace seems to be continuing, unabated.

You guys are not going to believe this scenario alleged in a lawsuit filed this week. The allegations are…appalling.

As reported by WaPo here, last year a black employee worked as a warehouse specialist for an energy company in Sacramento, California. The company has more than 4,000 employees working in 21 states.

These are the hostile work environment allegations in the lawsuit filed earlier this week in California Superior Court in Sacramento County:

  • The employee’s supervisor, without warning, referred to him by use of the “n-word.”
  • A different supervisor asked him “to reach his black hands out” when handing him a box.
  • A supervisor offered him a banana and stated, “Monkeys like bananas.”
  • Then, and this took the cake, his white co-workers built forts around their desks with cardboard boxes with the spray-painted words “whites only.”

There are photographs of these forts. Kind of reminds me of a kids’ clubhouse, but…not.

  • The “forts” remained on the co-worker’s desk for two weeks, ignored by management.
  • Managers dissuaded him from complaining to the company’s human resources department.

The employee in question alleges racial discrimination and harassment in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as well as California’s Fair Employment and Housing Act (“FEHA”). The employee resigned.

As Rich has noted (unfortunately all too frequently) it seems unbelievable that this is 21st century workplace behavior.

The Law Regarding Unlawful Harassment

As we have discussed concerning sexual harassment (here) and harassment based on religion (here), to constitute a hostile work environment, first, comments and conduct must be based on a protected characteristic, such as race.

Second, the comments must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive. The
“objective” test.

Finally, the racially charged comments or conduct must be severe and pervasive to the point that the employee herself or himself considers it to be offensive and abusive. The so-called “subjective” test.

Offensive conduct may include, but is not limited to, offensive race-based jokes, slurs, comments, epithets or name calling (like the “n-word”); physical assaults or threats of assault; intimidation, ridicule or mockery, insults or put-downs, display of offensive objects or pictures, and interference with work performance.

What Was This Alleged Conduct?

I am going to go out on a limb here and say that it is quite likely that a cardboard box depicting a sign saying “whites only” is the type of “offensive conduct,” based on race, prohibited by federal and state law.

The company at issue seems to agree, and, in an interesting public relations decision, a company representative provided this statement to WaPo (which you can read on the earlier link):

We typically have a policy of not commenting on specific personnel matters or pending litigation. However, in this case, we wish to extend a sincere apology to [the employee] for the deeply concerning and understandably upsetting situation he endured.

[His] experience was an isolated one and it has been addressed by our HR team to ensure something like this never happens again …[His]  experience simply does not reflect the values or culture of [the Company] and stands in direct contradiction to our core values as a company.

I mean…I applaud them for the accountability, but I’m thinking this will be an issue for their defenses in this lawsuit (if it proceeds).

Now, there are separate issues involving the managers that we should break down here: they allegedly engaged in racial harassment themselves; they allegedly tolerated racial harassment committed by others; and they allegedly interfered with the employee’s right to report the harassment to HR.

The employee in the case in California resigned after continuously being treated this way. Thus, the company did not take any “adverse action” against him. (Remember we discussed what this could be in our Memorial Day post here: firing, demotion, failure to promote, bad shifts). As we know from SCOTUS cases like Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, since there was no adverse action, an employer (and certainly the employer at issue) has certain affirmative defenses available. It can claim it exercised reasonable care to prevent and promptly correct any harassing behavior and can certainly assert that the employee failed to take advantage of any preventive or corrective opportunities.

Will the employer raise these defenses in this case? I do not have a crystal ball, but I think that the employer’s representative’s statement to WaPo answers that question.

Employer Takeaway for Unlawful Racial Harassment Prevention

These are easy today, and they’re not much different from what I’ve told you previously about preventing sexual harassment:

  • Have a clear, no-tolerance anti-harassment policy in your employee handbook; ensure it is disseminated throughout your company, updated as needed, and understood by all of your employees;
  • In that same handbook, provide a written procedure for reporting and promptly investigating claims of unlawful harassment and follow it, documenting the process along the way. Have clear standards for accountability and what merits discipline;
  • Provide regular, interactive training so that employees can recognize, respond to, and prevent unlawful harassment (based on sex, race, age, etc.) tailored to your  And, of course, not to engage in racial harassment, as the plaintiff alleges two supervisors did. Training and anti-discrimination/harassment policies must be promoted by senior leaders to show commitment.
  • Encourage reporting of any unlawful harassment and convey, via your policies and practices, that your company prohibits retaliation. This is bystander intervention; and
  • Critically, maintain a “top-down” culture prohibiting and not tolerating unlawful harassment.

Prevention means your company is more likely to be following the law in the first place.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.