“N-Word” Did Not Give Rise to Hostile Work Environment: SCOTUS-Nominee Amy Coney Barrett

Ordinarily I write about decisions issued by New York state courts, federal district courts located in New York, the U.S. Court of Appeals for the 2nd Circuit, and, of course, the U.S. Supreme Court. Here, however, I’ll make an exception and stray from these jurisdictional/geographic limits, in order to discuss a decision issued by the U.S. Court of Appeals for the 7th Circuit and, specifically, authored by SCOTUS nominee Amy Coney Barrett.[1]This of course does not represent the full scope of Judge Barrett’s judicial opinions.

In Smith v. Illinois Dept. of Transportation, 936 F.3d 554, Case No. 18-2948 (7th Cir. 2019), the Court affirmed the decision of the lower court’s decision to grant defendant’s motion for summary judgment on plaintiff’s race-based hostile work environment claim asserted under Title VII of the Civil Rights Act of 1964.

The court outlined the four elements of a hostile work environment claim, namely,

(1) the employee was subject to unwelcome harassment; (2) the harassment was based on a reason forbidden by Title VII—here, race; (3) the harassment was so severe or pervasive that it altered the conditions of employment and created a hostile or abusive working environment; and (4) there is a basis for employer liability.

Applying the law, the Court held that plaintiff’s “case largely founders on the second prong, because the majority of the harassment he identifies was unconnected to his race.” It cited a number of instances in which plaintiff was subjected to profanity (including the “f-word”), and explained that such language was not actionable since there was no evidence that plaintiff’s supervisors swore at him because he was black.

Judge Barrett continued:

Smith describes one incident, however, that plainly constitutes race-based harassment: Colbert, one of his former supervisors, called Smith a “stupid ass ni[]” after finding out that Smith had filed a complaint with the Equal Employment Opportunity office. The n-word is an egregious racial epithet. Nichols v. Mich. City Plant Planning Dep’t, 755 F.3d 594, 601 (7th Cir. 2014) (“[W]hile 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.'” (citation omitted)). That said, Smith can’t win simply by proving that the word was uttered. He must also demonstrate that Colbert’s use of this word altered the conditions of his employment and created a hostile or abusive working environment. Huri, 804 F.3d at 834. And he must make this showing “from both a subjective and an objective point of view.” EEOC v. Costco Wholesale Corp., 903 F.3d 618, 625 (7th Cir. 2018). In other words, he must show not only that a reasonable person would find the workplace hostile or abusive as a result of Colbert’s slur, but also that he himself perceived it that way. Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).

We need not address the objective prong of the analysis, because Smith falters on the subjective prong. He introduced no evidence that Colbert’s use of the n-word changed his subjective experience of the workplace. To be sure, Smith testified that his time at the Department caused him psychological distress. But that was for reasons that predated his run-in with Colbert and had nothing to do with his race. His tenure at the Department was rocky from the outset because of his poor track record. He clashed with his supervisors over pay, and they confronted him with foul language. As early as August —the first month of his employment— he sent memoranda to the Department complaining of a “hostile work environment.” On Smith’s own account, his supervisors made him miserable throughout his employment at the Department. But as we have already discussed, he has no evidence that his supervisors were lashing out at him because he was black.

The first incident in which race played a part was his January 16th run-in with Colbert. By then, things were already at a breaking point. The Department had initiated termination proceedings against Smith two weeks before, so he knew that he was about to be fired. And while things certainly could have gotten worse for Smith after the racially charged confrontation with Colbert, he offers no evidence that they did. Instead, Smith presents the confrontation as yet another in-stance of the same ill treatment that he had been receiving all along.

That won’t do under Title VII. Because the statute does not give employees a remedy for workplace abuse unrelated to a protected characteristic, Smith needs to point to evidence—even if in his own testimony—that he suffered harm from Colbert’s race-based harassment that was distinct from the distress that non-race-based harassment was already causing him. Put differently, Smith has to be able to persuade a jury that Colbert’s race-based harassment was severe enough “to alter the conditions of [his] employment.” Huri, 804 F.3d at 834 (emphasis added). Smith did not even try to make that showing—he points to no evidence that Colbert’s slur caused him either additional or different distress. Without evidence that Colbert’s outburst changed Smith’s subjective experience during his last two weeks at the Department, a reasonable jury could not resolve the hostile work environment claim in Smith’s favor. [Emphasis added.]

While this conclusion is ostensibly based on indisputable principles of black-letter law, it appears to be a rather rushed and perfunctory analysis. For example, the 7th Circuit does not address or analyze the basis for the lower court‘s decision, namely, that while the n-word “is one of the most vile words ever invented … generally speaking, one instance is ‘not sufficiently severe or pervasive to alter the conditions of employment’ or to create an ‘objectively hostile work environment.'”

This is important, since Title VII in general, and the scope of hostile work environment claims asserted under that statute in particular, are no strangers to the Supreme Court.

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1. This of course does not represent the full scope of Judge Barrett’s judicial opinions.
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