In Johnson v. PRIDE Industries, Inc., No. 19-50173, 2021 WL 3440524 (5th Cir. Aug. 6, 2021), the U.S. Court of Appeals for the Fifth Circuit reversed the district court’s grant of summary judgment on plaintiff’s race-based hostile work environment claim. (Note: the EEOC submitted an Amicus Curiae, i.e., “friend of the court,” brief in this case urging reversal; copy here.)
After reviewing the black-letter law, the court applied it to the facts, as follows:
In evaluating whether the harassment here was sufficiently severe or pervasive to alter the conditions of Johnson’s employment, we first review the most obvious—and obviously offensive—evidence of racial harassment: the use of racist slurs in Johnson’s presence. Johnson testified about two specific instances in which Palomares—a supervisor in the same carpentry shop as Johnson, though not Johnson’s supervisor7—used the word “mayate” in his presence. During both instances, Johnson was the only black person present, and thus the reasonable inference can be drawn that the slur was directed at Johnson. And because Johnson knew from his wife that the term was the Mexican-Spanish equivalent of “n*****,” he subjectively perceived the slurs as severely harassing. Johnson also testified that another colleague once called him “n*****.”
In addition, Johnson’s co-employee, Yanez, described a work environment in which Palomares regularly used racial invective, referring to black employees, including Johnson, as “pinchis mayates”—meaning “f***ing n*****s”—and “pinchis negros”—“f***ing blacks.” The district court recognized that “mayate” “has the same taboo status as the n-word.” Neither party disputes this understanding of the term, and so we accept it for the purposes of this appeal.8
The magnitude of the offensiveness of being referred to as “mayate” or “n*****” by a fellow employee cannot be understated—particularly when used by a fellow employee who outranked Johnson in the carpentry shop in which the two labored. Our court has observed that the term “n*****” is “[t]he most noxious racial epithet in the contemporary American lexicon.” Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 409 (5th Cir. 2015) (quoting Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1034 (9th Cir. 1998)); see also McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 (9th Cir. 2004) (“It is beyond question that the use of the word ‘[n*****]’ is highly offensive and demeaning, evoking a history of racial violence, brutality, and subordination. This word is ‘perhaps the most offensive and inflammatory racial slur in English, … a word expressive of racial hatred and bigotry.’ ” (quoting Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th Cir. 2001)). Far from “a mere offensive utterance,” this slur is inherently and deeply “humiliating.” Harris, 510 U.S. at 23, 114 S.Ct. 367.
The court rejected defendant’s argument that the epithets were too “isolated” to give rise to a hostile work environment claim, noting that Palomares repeatedly referred to plaintiff as either “mijo” or “manos”. While neither of these terms were inherently offensive or derogatory, their use in context gave rise to a genuine issue of material fact as to whether they were used in an objectively offensive manner. (The court cited case law discussing the “long and sordid history of people using diminutives like ‘boy’ to refer to adult black men in a racially invidious manner.”
Evidence other than racial epithets – specifically, the hiding of paperwork submitted by plaintiff in connection with his promotion application – supported the conclusion that plaintiff endured an objectively hostile or abusive work environment.