Hostile Work Environment Claim Arising From Alleged Racism-Caused Bodily Injury Proceeds

In Guzman v. Concavage Marine Constr. Inc., No. 14-CV-8587 (KMK), 2016 WL 1273285 (S.D.N.Y. Mar. 31, 2016), the court denied defendants’ motion to dismiss/strike plaintiff’s allegation that he suffered a physical workplace injury as a result of his employer’s owner’s racist attitude towards him, in violation of 42 U.S.C. 1981.

This decision is instructive as to the scope of 42 U.S.C. 1981, including who is protected by that statute, as well as what conduct might amount to a hostile work environment claim under it.

Initially, the court held that 42 U.S.C. 1981 – which prohibits discrimination based on race – is implicated by negative comments about “Mexicans” and “Spanish guys” where, as here, the discriminator is alleged to have “used those terms disparagingly to a Hispanic employee from neither Mexico nor Spain.”

Next, the court considered plaintiff’s hostile work environment allegation. Plaintiff alleged, in paragraph 99 of his complaint:

Nicholas Concavage’s discrimination against Plaintiff caused him to look down on Plaintiff and discount what Plaintiff had to say. As a result, at least in part, of this distorted view of Plaintiff s worth, Concavage failed to wait for the required signal from Plaintiff when he (Concavage) was operating a crane, which, in turn, caused Plaintiff to injure his knee. (It is noted here that the New York State Worker’s Compensation Law does not bar an employee from suing his employer under federal civil rights laws.

The court rejected defendants’ argument that “Plaintiff is attempt[ing] to circumvent the exclusivity of the Workers Compensation Law and obtain a recovery of damages for an alleged on-the-job injury to his knee by claiming that the injury was the consequence of intentional discrimination.”

It explained:

Here, the allegation may well be relevant to Plaintiff’s hostile work environment claim. Indeed, hostile work environment claims are to be decided on the basis of the totality of the circumstances, with an eye toward, among other things, whether the conduct unreasonably interferes with an employee’s work performance. As a result, it is premature to conclude that—as a matter of law—Plaintiff’s allegation concerning his injury allegedly caused by Nicholas Concavage’s allegedly racist, dismissive attitude toward Plaintiff is so out-of-bounds as to warrant relief upon a disfavored motion; to the contrary, it is appropriate to keep this allegation in the picture, so that the Court can later evaluate the totality of such circumstances should the question be presented upon a motion for summary judgment. Therefore, the Court declines to strike [Complaint] ¶ 99 and further declines to dismiss Plaintiff’s § 1981 claim.

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