In Mondesir v. N. Shore LIJ Health Sys., No. 14-CV-6496 (JGK), 2016 WL 6952254 (S.D.N.Y. Nov. 28, 2016), the court dismissed plaintiff’s race discrimination (hostile work environment) claim under 42 U.S.C. § 1981.
Plaintiff, a black woman born in Haiti, worked as a medical assistant for defendant. She alleged, among other things, that a manager’s use of the word “girl” “was racially derogatory and created a hostile work environment, and that she was terminated in retaliation for complaining about it.
While the court held that in this case defendant was entitled to summary judgment dismissing plaintiff’s claims, it is nonetheless instructive on how courts evaluate so-called “dog-whistle”, or “coded”, racism in the context of a workplace discrimination claim.
Under [42 U.S.C.] § 1981, the plaintiff must establish two elements to prove that she was subjected to a hostile work environment based on race. First, the plaintiff must demonstrate that the harassment was sufficiently severe or pervasive to alter the conditions of [the plaintiff’s] employment and create an abusive working environment. Isolated incidents typically will not create a hostile work environment, unless the incidents are so severe that they alter the terms and conditions of employment. As a general rule, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive..
Second, the plaintiff must show a specific basis for imputing the hostile work environment to the employer.
To analyze a hostile work environment claim, courts consider the totality of the circumstances, in light of such factors as the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. In addition, the plaintiff must show not only that she subjectively perceived the environment to be abusive, but also that the environment was objectively hostile and abusive. Further, [i]t is axiomatic that the plaintiff also must show that the hostile conduct occurred because of a protected characteristic.
The plaintiff argues that by using the term “girl” in reference to the plaintiff, the defendants created a hostile work environment in violation of Section 1981. Section 1981 recognizes “dog-whistle racism,” or the use of code words and themes which activate conscious or subconscious racist concepts and frames. [F]acially non-discriminatory terms may invoke racist concepts that are already planted in the public consciousness, such as “welfare queen,” “terrorist,” “thug,” and “illegal alien.” In determining whether race-neutral words are used as racially charged code words, various factors are important, such as context, inflection, tone of voice, local custom, and historical usage. (Emphasis added.)
Applying the law to the facts, the court held that the plaintiff “failed to adduce sufficient evidence from which a rational trier of fact could conclude that she was subjected to a hostile work environment because of her race.”