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When One Word Is Too Much… Single Racial Slur May Support Hostile Work Environment Claim

In Castleberry v. STI Group, No. 16-3131 (3d Cir. 2017), the Third Circuit Court of Appeals held that a manager’s one-time use of a racial slur, combined with his threat to fire a Black employee, could be enough to support a Section 1981 hostile work environment claim. Two Black laborers sued their staffing agency (STI) and the client location where they were placed (Chesapeake Energy Group) based on their treatment at Chesapeake. They were not permitted to work on the pipelines despite significant and more experience doing so than their white counter-parts, and an anonymous comment was written on the sign in sheet stating “don’t be black on the right of way.” While working on a fence removal project, a supervisor had said to Castleberry and his co-worker that if they had “ni[**]er-rigged” the fence, they would be fired. Castleberry and his co-worker reported this statement to a supervisor and they were terminated without explanation two weeks later. They were rehired shortly thereafter, but then let go again, for lack of work. Castleberry and Brown sued for discriminatory termination, retaliation and racial harassment. The district court dismissed the complaint, and as to the hostile work environment claim, found that the facts did not support the alleged harassment was “pervasive and regular.”

The Third Circuit reversed, and took the time to clarify the correct standard for hostile work environment claims. Recognizing that there have been three different standards articulated: severe or pervasive, severe and pervasive, and pervasive and regular, the Third Circuit confirmed that the only correct standard, per Supreme Court precedent, is “severe or pervasive.” “Indeed, the distinction means that severity and pervasiveness are alternative possibilities: some harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable, conduct will contaminate the workplace only if it is pervasive.” Id. at *7. The Third Circuit then concluded that a supervisor’s single use of the n-word can suffice to state a claim. And here, where it was combined with a threat to terminate (which he actually then did), the allegations was sufficiently severe to state a hostile work environment claim.

The n-word is undoubtedly one of the most malicious and intolerable words. This decision, moreover, would logically extend to other isolated discriminatory remarks about sex, religion, and other protected classes. Employers must be vigilant in enforcing anti-discrimination policies, encouraging employee reports about harassment, and promptly and thoroughly investigating any allegations, even if a single remark or occurrence.

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