In my many years of practicing employment law, I’ve seen hostile work environment accusations leveled against owners, supervisors, co-workers, subordinates, customers, vendors, and many others.
But accusing a young child of racial discrimination is a new one for me.
In this case, the plaintiff alleged that she was subjected to multiple instances of racial harassment and compelled to resign for good in the summer of 2018 after repeatedly being called the n-word three times by the six-year-old son of a supervisor and the grandson of the company’s two owners.
On one occasion, the plaintiff claimed that the child told her, “My daddy called you a lazy ass black (the n-word) because you didn’t come to work.”
The employer argued that the three n-word incidents were insufficiently severe or pervasive to alter the plaintiff’s conditions of employment and create an abusive work environment.
Many courts have recognized that a single utterance of the n-word from a supervisor is enough to create a hostile work environment for a subordinate.
But, from a child?
Under the circumstances, the Fourth Circuit concluded that a reasonable jury could conclude that the little boy did create a hostile work environment:
[T]he boy who uttered the slurs was not just any ‘young child,’ but the grandson of [defendant’s] owners and the son of a supervisor being groomed to take over the family business. Thus, a reasonable person in [the plaintiff’s] position could fear that the child had his relatives’ ear and could make life difficult for her.
Moreover, in the July 2018 n-word incident, the boy directly attributed the slur to his father, along with a negative commentary on [the plaintiff’s] work performance. As the boy put it, ‘My daddy called you a lazy ass black (the n-word), because you didn’t come to work.’ 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 [the plaintiff]. 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 [the plaintiff’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 (the n-word), because you didn’t come to work.'” (cleaned up).
Remember that hostile work environment claims don’t hinge on intent but rather on the impact of harsh words and actions on the victim.
The Fourth Circuit did not concern itself with whether the boy knew what he was saying, 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.”
You may wonder how the plaintiff could attribute the child’s comments to the defendant. One way an employer can avoid liability for even the most vicious harassment is to have a policy that addresses it and an effective response mechanism.
In this case, there was evidence that the employer only had one handbook, which it kept at the front desk where the plaintiff may never have seen it.
So, naturally, the lesson here is to cancel “Bring Your Child To Work” day, don’t hide the employee handbook, and take ALL instances/complaints of harassment seriously.