Why was talk of confederate flags and cursing the President not “extreme” enough to be a hostile work environment?


How some of her coworkers spoke at work deeply offended a hospital nurse.

One of them said that “Michelle Obama looks like a monkey” and the “President is a piece of s**t.”

Another said President Obama was “stupid,” was the “worst president ever,” and “needs to go back to Africa.”

On another occasion, the hospital nurse, who is black, heard three white coworkers refer to black patients as “boy” or “girl,” “crack heads,” “welfare queens,” or “ghetto fabulous.” And three other white coworkers talked at the nurse station about their “redneck status,” owning guns, and being “confederate flag flyers.”

So, the nurse sued the hospital for creating a hostile work environment.

However, neither the district court nor the Eleventh Circuit Court of Appeals agreed that her coworkers had created one because the plaintiff failed to prove that the harassment was sufficiently pervasive or severe enough to alter the terms of her employment.

I’ll give you three reasons why:

  1. Some of the comments were overtly racist. But, the “harassers” did not aim them directly at the plaintiff. While the law doesn’t require this to succeed in a harassment claim, merely overhearing offensive comments is less severe or humiliating than being the intended target of direct harassment.
  2. Some of the comments could have been racist, but the plaintiff failed to clarify the context for the court. For example, talk of “confederate flag flyers” or “rednecks,” which by societal norms may offend certain people of color, do not fully explain the context in which a coworker may have uttered them. The appellate court underscored that “Nothing cited suggests, for example, that a coworker called herself a ‘confederate flag flyer’ in conjunction with a racial slur or in the same discussion as one.”
  3. The plaintiff was too vague in articulating how often this conduct occurred. She testified that her coworkers generally made racist comments “multiple times.” But what does that mean? Two? Twenty? Daily? Compare testimony that harassment occurred “every other day” or “nearly every day,” which coworkers corroborated, with less specific descriptions that harassment occurred “constantly.”

At bottom, not all subjectively offensive language in the workplace violates Title VII, which only prohibits harassment that is “so objectively offensive as to alter the `conditions’ of the victim’s employment.”

But, it sounds to me like this workplace was (is?) in desperate need of some anti-harassment training. Some states and localities mandate it. Employers can lose valuable defenses in subsequent lawsuits without proper training. Absent litigation, employers still lose employees who endure bad behavior without a sufficient means to address it.

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