Encounters of the Hostile Kind: What Do You Need to Prove a Racially Based Hostile Work Environment?
Meet Brenda Smelter. She is a black woman that was hired by Southern Home Care Services, Inc. d/b/a/ ResCare Homecare in July 2013 as a Customer Service Supervisor. She was the only black person who worked in her office, she replaced a white employee who was away from the office on maternity leave. Brenda struggled with performing her job but most distressing at work was that she often overheard co-workers making racist comments about black people; sometimes these comments were made directly to her face and in the presence of others, including members of management.
The severity of these racist comments peaked on the last day of her employment when a co-worker called her a “dumb black nigger” during an argument. According to Smelter, she was fired for reporting this epithet, along with her co-workers’ other racist comments, to her direct supervisor. The reason Southern Care provided for the termination was “poor fit” citing performance concerns and chaos. After her termination, she was replaced by a white employee, in addition to the return of her predecessor, also white, from maternity leave.
Brenda sued Southern Home under Title VII and 42 U.S.C. § 1981, asserting claims for discriminatory termination, hostile work environment, and retaliation. Smelter contends that Southern Home (1) discriminated against her by permitting a hostile work environment to exist at the office, (2) discriminated against her by terminating her because of her race, and (3) retaliated against her for reporting her co-workers’ racist comments.
After the case was dismissed by the District Court, the 11th Circuit Court of Appeals agreed with the district court that Smelter’s discriminatory termination and retaliation claims fail because she provided insufficient evidence of pretext in response to Southern Home’s legitimate, nondiscriminatory reasons for terminating her. But the 11th Circuit Court disagreed that, as a matter of law, the harassment Smelter suffered was not severe or pervasive and Southern Home lacked notice of that harassment.
Thus, in October 2018, the 11th Circuit Court gave us a recent window into the elements required to establish a racially based hostile work environment claim.
To prove a hostile work environment claim, an employee must show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” When the employee’s harassment claim is based on her race, she must prove five elements: (1) she belongs to a protected class, (2) she was subjected to unwelcome harassment, (3) the harassment was based on her race, (4) the harassment was sufficiently severe or pervasive to alter the terms of her employment and create a discriminatorily abusive working environment, and (5) the employer is responsible for the environment.
Typically at issue, as was the case here, is the “severe and pervasive” threshold. To establish that harassment was sufficiently severe or pervasive to alter the terms or conditions of her employment, an employee must prove that her work environment was both subjectively and objectively hostile. In other words, the employee must first establish that she “subjectively perceive[d] the environment to be abusive.” Then she also must satisfy the objective component by showing that her work environment was one “that a reasonable person would find hostile or abusive.”
Beginning with Smelter’s subjective perception of her work environment. Smelter repeatedly testified that enduring her co-workers’ racist comments was stressful and hurtful. She also explained that it felt like the harassment “never stopp[ed],” as though her co-workers were pushing her to “see how much she [could] take” in the hopes that she would “just quit and leave.” The Court found this testimony sufficient to demonstrate subjective belief in the severity and pervasiveness of the conduct.
The employer objected that Smelter’s failure to report the incidents indicate a lack of subjective believe in the harassment. Precedent recognizes, however, that an employee’s failure to report harassment is not dispositive of whether the employee perceived the environment created by the harassment as hostile or abusive.
Regarding objectivity, the facts sufficient to meet this threshold were:
1. Pervasiveness, also known as Frequency
Smelter endured racist remarks by her co-workers nearly every day that she worked in that office. There were at least 8 racist comments in 2 months that Smelter could recall with specificity.
2. Severity
Brenda endured the following comments: black men were “lazy” and “the scum of the earth; “black women[] ha[d] babies on welfare,” President Barack Obama’s “big ears” made him “look[] like a monkey,” and she did not know that black people could be buried on Sundays; Smelter’s hair made her look like a “mixed monkey” from the movie Planet of the Apes; an occasion when black people were exiting a bus at a Wal-Mart store was described as looking like they were “chained together.”; and a desire expressed to “send them all back . . . to Africa.”. A co-worker “jumped up . . in a rage” and said “get out of my office . . . you dumb black nigger.” in doing so she “hit the desk” like she was about “to charge at” Smelter.
The Court held that these comments were directed at Brenda to humiliate her and were egregious even just once because it was preceded by two months of related abuse, thus, they were severe.
3. “Physically threatening or humiliating”
See point number 2; the comments were severely humiliating. The Court stated that “physical threat” is not always a dispositive requirement.
4. Altered job performance is optional in light of totality of other circumstances
Indeed, “[t]he Supreme Court has cautioned that harassment need not be . . . so extreme that it produces tangible effects on job performance in order to be actionable.”
5. Because the comments were made by co-workers, management needed to be aware or made aware of the harassing conduct and must also have failed to take prompt remedial action
Here, there was a concession that no report was made until the day of termination but there might have been actual notice because Smelter testified that everyone thought the slurs were funny and that others, including management, overheard the slurs. Smelter also testified that members of management overheard these comments and were amused by them, but she never made a formal report until the day of her termination.
Take away for employees making this claim: this case demonstrates the type of hostility that makes the threshold for a hostile work environment claim.
Take away for employers defending such a claim: the company must take prompt remedial action if any members of management have actual or constructive notice of this type of hostility.
