Are the courts crafting a bright-line test to determine when a crude and offensive remark is severe enough by itself to constitute a hostile work environment? Or a sliding scale of severity, perhaps giving crude and offensive remarks different numerical values on the “crude and offensive” scale? And are the courts distinguishing severity based upon whether the remark is sexual or racial in nature?
These fascinating questions are illustrated by decisions from two different federal appeals courts.
One "N-word" is enough
In the first case, which we commented on recently, a federal appeals court said that a single usage of the “N-word” can make out a hostile work environment because it is a racial epithet that is “deeply offensive.” The Court stated that “perhaps no single act can more quickly alter the conditions of employment” than “the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor.”
Four sexual comments plus numerous "wear a French maid’s costume" remarks is insufficient
Compare this case to a Nevada case which we wrote about on April 3d, where the plaintiff female employee was subjected to numerous “crude and offensive remarks” but on “only about four occasions.” She was told by a co-worker frequently that “a large-breasted woman, whom he called ‘Double D,’ would attend a company event, and asked her ‘whether the size of the woman’s breasts intimidated her.’ He later spoke to her about tampons and "asked whether women ‘got off’ when they used a particular kind.” He also told her that “women were lucky because [they] got to have multiple orgasms.”
And, oh yeah, in addition to these comments made on only four occasions, he often told her that she had to clean a company facility “while wearing a French maid’s costume.”
The federal appeals court concluded that plaintiff did not make out a prima facie case of sexual harassment: “Although we certainly do not condone [the] crude and offensive remarks, we note that … [o]ther than his references to the French maid’s costume, [the co-worker] reportedly made offensive sexual remarks to [plaintiff] on only about four occasions.”
Is there a rule here somewhere?
Do we conclude that race and gender cases are treated differently when it comes to the number of times an offensive remark is made? Or when it comes to the nature or offensiveness of the comments made?
Or is it just that the courts simply have two different tolerance levels for what is crude, offensive, or severe.
Whatever it is, we advise employers to accept a zero-tolerance level for what is crude, offensive, or severe, and do not think it is wise for employers to accept any racially or sexually offensive comments – once, twice or four times.