Race-Based Hostile Work Environment Claims Survive; Evidence Included the Use of the “N-Word”

In Pardovani v. Crown Building Maintenance Co., 2020 WL 2555280 (SDNY May 20, 2020), the court denied defendants’ motion for summary judgment on plaintiff’s race-based hostile work environment claim.

From the decision:

Pardovani offers evidence to suggest that, far from an occasional occurrence, the word “nigger,” and derivations thereof, were used frequently and offensively in the workplace. Pardovani has offered evidence that both JALC and Able supervisors used the word on a regular basis. Defendant Richard Cruz allegedly used the word in anger, and despite Pardovani’s requests for him to stop. Cruz’s former supervisor, Ken Luciano, allegedly used the word frequently, as well as making derogatory racial comments and racial jokes in the workplace. Defendant Joe Miele admitted that he used the word at the workplace. Foreman Kimo Luciano also allegedly used the word frequently, including during a verbal altercation with Pardovani. Indeed, allegedly not only Pardovani, but also others complained about the frequency of its use.

As one court noted, “[g]iven American history, we recognize that the word ‘nigger’ can have a highly disturbing impact on the listener. Thus, a plaintiff’s repeated subjection to hearing that word could lead a reasonable factfinder to conclude that a working environment was objectively hostile.” And “when a supervisor wields the authority delegated to him by an employer … to further the creation of a discriminatorily abusive work environment, the supervisor’s conduct is deemed to be that of the employer.” Because Pardovani offers evidence that supervisors used the word regularly in the workplace, thus contributing to the alleged hostile work environment, a reasonable factfinder could find Able liable for their conduct.

[Citations omitted.]

The court rejected defendant’s “curious argument that [plaintiff] could not have been justifiably offended by the use of the ‘N word’ in the workplace because he had used the word on social media”, reasoning that “[i]t is not unheard of for in-group members to simultaneously re-appropriate racialized terminology for use, while maintaining an objection to its use by out-group members.” This principle was relevant here, as it was undisputed that none of the supervisors who used the word were African American.

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