In Chapman v. Oakland Living Center, Inc., No. 20-2361, 2022 WL 3954456 (4th Cir. Aug. 30, 2022), the U.S. Court of Appeals for the Fourth Circuit, inter alia, vacated a lower court’s award of summary judgment to defendant on plaintiff’s race-based hostile work environment claims asserted under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.
This case, sadly, involves yet another example of a workplace harassment claim based on the use of the “n-word”. Yet this case is unique, as the person who uttered this vile slur was the six-year-old son of a defendant supervisor and the grandson of defendant’s owners.
The court outlined the summarized the four elements of a hostile work environment claim, namely that there is (1) unwelcome conduct; (2) that is based on the plaintiff’s race; (3) which is sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.
Here, the district court focused on the fourth element, i.e., whether the three n-word incidents perpetrated by plaintiff’s supervisor’s six-year-old son are imputable to defendant.
As to the third element, the court explained:
OLC would have us distinguish this case from those, such as Boyer-Liberto, where we have recognized that even a single use of the n-word or a similar racial slur by a supervisor can engender a hostile work environment. See, e.g., Boyer-Liberto, 786 F.3d at 280 (recognizing that an alleged supervisor’s “two uses of the ‘porch monkey’ epithet — whether viewed as a single incident or as a pair of discrete instances of harassment — were severe enough to engender a hostile work environment”). According to OLC, the repeated use of the n-word here is not objectively severe because it “was uttered by a young child.”
As Chapman counters, however, the boy who uttered the slurs was not just any “young child,” but the grandson of OLC’s owners and the son of a supervisor being groomed to take over the family business. See Reply Br. of Appellant 18 (“OLC wants to emphasize the fact that these words came from a child, while ignoring whose child he was.”). Thus, a reasonable person in Chapman’s position could “fear that the child had his relatives’ ear and could make life difficult for her.” Id.; cf. Boyer-Liberto, 786 F.3d at 279 (deeming it relevant to the third element inquiry that the harasser had “repeatedly and effectively communicated to [the victim that the harasser] had [the employer’s] ear and could have [the victim] fired”).
Moreover, in the July 2018 n-word incident, the boy directly attributed the slur to his father, along with a negative commentary on Chapman’s work performance. As the boy put it, “My daddy called you a lazy ass black n*****, because you didn’t come to work.” See J.A. 67. Whether or not the boy was being truthful, the invocation of his father can reasonably be seen as further amplifying the severity of the boy’s comment to Chapman. Additionally, the comment combined “the most egregious of all racial insults” (the n-word) with “a vile stereotype … dating back to chattel slavery” (being lazy).
Simply put, a reasonable person in Chapman’s position could perceive a “tremendous difference between an insult from (say) a customer’s six-year-old child and the powerful statement from a supervisor’s son that ‘My daddy called you a lazy ass black n*****, because you didn’t come to work.’ ” And the harassment did not stop there. A short time later, in the first and second August 2018 n-word incidents, the same boy hurled the n-word at Chapman several more times and told her to “[g]et to work.”
Notably, it matters not if the boy was too young to understand the force of his words or if he lacked intent to harm Chapman, for harassment based on a protected characteristic may be actionable where it has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. Indeed, a reasonable person in Chapman’s position could perceive the boy’s comments to be especially humiliating because of his young age, and his constant presence in the assisted living facility’s kitchen to pose a threat that another incident could occur at any time.
Considering all of the foregoing circumstances, the fact that the three n-word incidents were perpetrated by a six-year-old boy does not preclude a finding that those incidents are sufficiently severe or pervasive to alter Chapman’s conditions of employment and create an abusive work environment. Accordingly, we reject OLC’s contention that it is entitled to summary judgment for lack of an adequate showing on the third element of Chapman’s hostile work environment claim.
Turning to the fourth element, the court ultimately held that “a reasonable jury could find that OLC had either or both constructive and actual knowledge of the three n-word incidents and that its response was insufficient.”
Specifically, the court held that there was a jury question “as to whether Steve Smith’s response to the first August 2018 n-word incident — spanking his young son, dragging the boy to the assisted living facility’s kitchen to apologize to Chapman, and then abruptly leaving the boy crying and recalcitrant with Chapman and Warner, without even offering his own apology — was reasonably calculated to prevent further harassment,” noting that “[a] reasonable trier of fact could conclude that leaving a distressed six-year-old child, who has just been making racist comments, alone in the workplace with the victim and target of those comments certainly is not action reasonably calculated to stop the harassment or to repair the working environment.”