In the past we discussed the issue of “how many” – i.e., how many times an employee must endure a crude and offensive racial or other epithet for the situation to become a hostile work environment? We know that the federal test for a hostile work environment is, in sum, that the epithets must either be severe or pervasive.
On May 24, 2013, we wrote that a federal appeals court in Washington, DC held that a single use of the “N-word” was enough to 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.”
In that case the African-American employee, when given a promotion without a raise, was allegedly told “For a young black man smart like you, we are happy to have your expertise; I think I’m already paying you a lot of money.” Given this backdrop, the Court held that when a VP allegedly later told him to “get out of my office nigger,” this latter statement (if indeed made) was severe enough to, in and of itself, be considered a hostile work environment.
Now, as reported by Law360, a different federal appeals court, the Fourth Circuit out of Virginia, ruled two days ago that an employee’s calling the African-American plaintiff a “porch monkey” on two occasions did not constitute a hostile work environment.
While piously declaiming that “[t]he ‘porch monkey’ term that Clubb used was indeed racially derogatory and highly offensive, and nothing we say or hold condones it,” it nonetheless ruled that use of the term “twice in a period of two days in discussions about a single incident was not, as a matter of law, so severe or pervasive … so as to be legally discriminatory.”
How do we square these two rulings?
Is the N-word by itself worse than the term porch monkey? Do two “porch monkey” comments equal one N-word?
Should the courts craft a bright-line test to determine when a crude and offensive remark is severe enough by itself to constitute a hostile work environment? Or perhaps a sliding scale of severity, giving crude and offensive remarks different numerical values on the “crude and offensive” scale?
These fascinating, albeit disturbing, questions are similarly illustrated by decisions involving sexual harassment, which we discussed last year. For example, there was a Nevada case which we wrote about on April 3, 2013, where a 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 [Ed. words such as “we do not condone” appear frequently when a court finds no hostile work environment], 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.”
As a coda to these different cases, last year we wondered on May 30, 2013: “Is There A Sexually Harassing Word As Offensive As The “N-Word?,” such that one usage might be considered actionable? Boy, did we get a heckuva lot of reader comments in response!
So we also asked “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.
Takeaway: Whatever it is, and however the courts differ, we advise employers not to accept comments which are crude, offensive, or severe, and not to accept any racially or sexually offensive comments – once, twice or four times.