Retaliation, Racial Slurs, and HR Failures: An Employer’s Roadmap to a Jury Trial

Title VII, the federal antidiscrimination law prohibiting race discrimination, is not a general civility code. An aggrieved employee must establish that they were subjected to behavior based on their race that was severe or pervasive enough to interfere with their working conditions. As we learned yesterday, no rational person would countenance the claims of a white employee offended about discussions and initiatives focused on antiracism and racial justice.

Conversely, a recent decision from the Sixth Circuit Court of Appeals serves as a lesson for employers on unlawful racial harassment, retaliation, and HR missteps.

Slurs, Stereotypes, and Grease?!?

The case involved an African American employee who endured repeated racial slurs, offensive jokes, and workplace exclusion. His white coworkers:

• Used racial slurs, including the “n-word”
• Made stereotypes about Black men, calling him a rapper or a basketball player
• Ostracized him, refusing to speak with him or allow him to ride in shared work vehicles
• Vandalized his property, throwing grease on his car windshield

To establish a hostile work environment under Title VII, an employee must demonstrate that the harassment was severe or pervasive enough to alter the conditions of employment and create an abusive working environment. Here, the Sixth Circuit concluded that a reasonable juror could reach that conclusion.

Where Management Dropped the Ball

The Sixth Circuit did not decide whether the company had prior knowledge of the harassment but highlighted several failures in its response.

1. Weak Response to Complaints

After the employee reported the harassment, his supervisor held a single meeting telling employees to stop. One coworker even defended the use of racial slurs. Unsurprisingly, the harassment continued.

2. No Real Consequences

A harasser vandalized the employee’s car with grease, yet the supervisor merely told him to “stop it.” With no discipline or corrective action, the harassment persisted.

3. HR’s Failed Investigation

HR dismissed the harassment as “joking around” rather than acknowledging its racial nature. The investigation led to no meaningful changes, and the hostile environment remained.

Beware of Coworker Retaliation

The Sixth Circuit recognized that retaliation in this case did not come from management alone—coworker retaliation played a central role. Under Title VII, an employer can still be liable when coworkers create a retaliatory environment that discourages employees from reporting discrimination.

Here, the employee’s mistreatment escalated after he spoke up about racial harassment. The court highlighted that:

• His coworkers continued to ostracize him, limiting his ability to perform his job effectively.
• The grease incident occurred after he complained, suggesting an act of retaliation rather than a random act of hostility.
• The employer’s failure to step in enabled a retaliatory work culture, where employees felt free to intimidate a coworker for speaking up.

The ruling makes clear that retaliation isn’t just about firings or demotions—it includes any form of mistreatment that discourages employees from reporting misconduct. Employers must ensure that coworker retaliation is addressed just as seriously as managerial retaliation.

Key Takeaways for Employers

1. “Neutral” Conduct May Still Be Harassment

The court emphasized that even facially neutral conduct could be considered race-based when viewed in the context of other overtly discriminatory actions. For example, the employee who threw grease on the victim’s windshield had previously used racial slurs.

2. Comprehensive Harassment Policies

Ensure that your workplace has clear, comprehensive policies addressing harassment and discrimination. These policies should explicitly state that all forms of harassment, including those that may appear facially neutral, are prohibited.

3. Retaliation Can Take Many Forms

The court noted that coworker retaliation—when left unchecked—can create a work environment where employees fear speaking up, further embedding a cycle of discrimination. Retaliation also includes any act that a victim may construe as a physical threat for opposing racial harassment — like having your car vandalized with grease. Eww!