Ok, the Sixth Circuit Court of Appeals’ opinion wasn’t quite that colloquial when questioning the trial judge’s analysis. However, I’ll explain why the appellate court concluded that a jury should decide whether a black tool crib operator who testified that numerous coworkers used the N-word routinely while he was around was subjected to a hostile work environment.
And it wasn’t just the N-word that the plaintiff’s coworkers and supervisors used so casually.
The plaintiff recounted other instances of racial harassment too.
- A coworker made a noose out of a hose pipe, held it up to his face, and told the plaintiff, “This is what we do around here.”
- A white supervisor told the plaintiff: “I see you have your black face on today.”
- A colleague used a gesture imitating firing a gun at him.
- A white supervisor with three or four other white employees told the plaintiff, “There is enough of us to take him down.”
- Three employees made comments the plaintiff perceived as threatening, such as, “We all got ugly faces, and we in it together,” “Are you having fun yet?” and “You better pray.”
At his deposition, the defendant’s lawyer asked the plaintiff how often the defendant subjected him to this type of harassment. The plaintiff testified that he lost count. But, it got so bad that the plaintiff ate lunch in his car or at his workstation. Eventually, he was briefly hospitalized for high blood pressure and received psychotherapy chiefly to deal with the stress of the harassment.
Consistent with the defendant’s policies, the plaintiff testified that he complained to his supervisor 14-17 times, but the supervisor never acted on them.
The Sixth Circuit concluded that the plaintiff had presented sufficient evidence to survive summary judgment on his hostile-work-environment claim. To succeed, a plaintiff must demonstrate: (1) he belonged to a protected group, (2) he suffered unwelcome harassment, (3) the harassment was race-based, (4) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment, and (5) the defendant “knew or should have known” and did nothing.
Here, the first three elements aren’t in dispute. So, let’s focus on the fourth and fifth.
Constant racial slurs (at least 45-50 N-words) and a noose threat in 9 months are severe or pervasive by themselves. Add in the physical threats, and it’s obvious — especially when the court must credit at summary judgment the plaintiff’s testimony that he sought psychotherapy and had to eat lunch in his car to escape the harassment.
The fifth element also hinges on the plaintiff’s testimony that he often complained to the supervisor about the harassment, and the company did nothing about it. The supervisor, by contrast, testified that he didn’t act because he was not aware of any complaints of racial harassment. A jury can decide this factual dispute.
Summary judgment for the employer is reversed.