New Jersey - 201-488-7211
New York - 212-279-5979
Kates Nussman Rapone Ellis & Farhi, LLP

Just One Remark Can Cause a Hostile Work Environment

London_MMB_»095_15_Westferry_Circus.jpgChesapeake Energy Corporation is an oil and natural gas company and STI Group is a staffing-placement agency that is a subcontractor for Chesapeake Energy.

Altron Castleberry and John Brown were fired by STI Group and both of them filed suit against the 2 companies, claiming that the terminations were based on their race, which is African-American. A lower federal court dismissed their cases, but an appeals court reversed that decision.

The two men claimed that they were the targets of racially insensitive remarks from employees at Chesapeake Energy. They said that someone anonymously wrote "don't be black on the right of way" on their sign-in sheets. They also claim that they had more experience working on pipelines than their non-black coworkers, but were not allowed to work on them.

Finally, their lawsuit says - and 7 coworkers confirmed it - that while working on a fence-removal, a supervisor threatened to fire them if they "nigger-rigged" the fence. Plaintiffs were fired without explanation two weeks after complaining about this. They were later rehired, then fired again for "lack of work."

Employment discrimination claims under federal law, namely Title VII of the Civil Rights Act of 1964, use what is called the "McDonnell Douglas burden-shifting analysis." The initial burden is on an employee to establish the "prima facie" or basic elements of the claim. The burden then shifts to the employer to provide a "legitimate, nondiscriminatory reason for the adverse employment action." Finally, the employee then has the burden of proving that the employer's stated reason is an excuse, or pretext, for the adverse employment action.

In this case, the court had to decide if the one-time use of a racial slur was a "severe and pervasive" enough to be a hostile work environment. The appeals court said that one extreme and isolated incident indeed can be. The racial slur was followed by threats and actual termination.

The higher court held that the lower court's dismissal of Castleberry and Brown's discrimination claims was wrong. They established that they were members of a racial minority, there was an intent to discriminate based on their race and discrimination occurred. Interestingly, the employer did not give the court any nondiscriminatory reasons for the firings.

The lower court dismissed the claims because it did not believe that a single incident met the standard of "severe and pervasive." The appeals court disagreed and "sent the case back" for it to continue.

In another New Jersey case almost 20 years ago, the New Jersey Supreme Court decided that under the New Jersey Law Against Discrimination, a sheriff's officer in the Burlington County Sheriff's Department, under the "severe or pervasive" test, could show that one incident of harassing conduct created a hostile work environment.

Back in 1992, the African-American employee was at the Burlington County Police Academy for firearms training and weapons qualification. While there, she encountered a co-employee and an Undersheriff. She said hello and in response, the co-employee turned to the undersheriff and said: "There's the jungle bunny." The undersheriff laughed. The African-American employee believed the remark to be a demeaning and derogatory racial slur. She became a "nervous wreck," immediately began crying, and went to the bathroom. She returned to the Police Academy classroom, in which she was the only African American and the only woman. Holding back tears, she related her experience to co-workers. The officers laughed and one responded: "I'm a black Irishman."

The obvious lesson is that employers have a clear duty not only to take strong and aggressive measures to prevent harassment based on race, age, gender, national origin, disability and other protected categories of employees, but also to correct and promptly remediate such conduct when it happens.

No Comments

Leave a comment
Comment Information