Civil Rights

Hostile work environment can be created with one racial slur, 2nd Circuit rules

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2nd Circuit

The Thurgood Marshall U.S. Courthouse in New York City. Daniel M. Silva /

A single racial epithet may be enough to support a claim for a hostile work environment under Title VII of the Civil Rights Act of 1964, the New York-based 2nd U.S. Circuit Court of Appeals ruled Tuesday.

According to Law360 (sub. req.) and Business Insurance, the ruling came in a case brought by Otis Daniel, a former fire safety director for T&M Protection Resources LLC in New York. Daniel—who represented himself in the appeals court—alleged that T&M personnel subjected him to enduring harassment and discrimination because he is of African descent, gay and originally from the Caribbean nation of St. Vincent and the Grenadines. Judge Paul Engelmayer of the Southern District of New York granted summary judgment to T&M, saying a one-time use of the N-word couldn’t support a claim against the company for permitting a hostile work environment

The 2nd Circuit did not say the slur by itself was definitely enough to support such a claim. But it said the district court misapplied circuit precedent in Schwapp v. Town of Avon, a 1997 case, when it rejected the mere possibility.

“The district court’s reading of Schwapp is further at variance with this court’s more recent observation, in dicta, that ‘perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet … by a supervisor in the presence of his subordinates,’” the three-judge panel wrote.

That’s one thing that Daniel contends happened during his time at T&M, Law360 reported, but not the only incident. He also alleged that a supervisor deliberately brushed his genitals against Daniel’s buttock; frequently used slurs aimed at gay people; repeatedly watched him nap and change clothes; told him to “Man up, be a man”; compared him to a gorilla; and accused him of stealing a computer. In all, Daniel alleged about 20 separate incidents during his 15 months with T&M.

Taken together, the appeals court said, these incidents could be enough evidence to support a pattern of hostility that could support Daniel’s hostile work environment claim. The district court improperly ignored some of these incidents or accepted them as facially neutral, the court said, even though courts must draw inferences in favor of plaintiffs in summary judgment rulings.

In his appeal, Daniel had help from the Equal Employment Opportunity Commission, acting as amicus curiae. The EEOC argued that one sufficiently severe slur is enough to get a case past summary judgment, and that Daniel had “presented more than enough evidence to reach a jury.”

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