“How do we square these two rulings”?  

We asked this question on May 15th apropos a new decision from a three-judge federal appeals court panel sitting in Virginia which ruled that an employee’s calling the African-American plaintiff a “porch monkey” on two occasions did not constitute a hostile work environment.   After all, it was only two occasions.

The Decision From Virginia

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,” the Court 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.”

We posed 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?


This is a significant issue, because a prior ruling from a different federal appeals court (in Washington, D.C.) 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.”   See post of May 24, 2013.

The Decision From Washington D.C.

The Court in the DC case 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.

Should A Bright Line Test Be Used?  A Sliding Scale of Severity?”

We asked somewhat caustically on May 28th:   “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?”  For example, should the N-word be given a higher offensive value than a simple “porch monkey” comment?  Maybe double the value?  Or triple?

The Virginia Decision To Be Reheard By The Entire Appeals Court

Now, as reported today by Law360, the full Virginia appeals court has just decided to rehear the appeal – a relative rarity — as to whether the “porch monkey” comments made on two occasions in fact constituted a hostile work environment.  The plaintiff contended in seeking this rehearing, according to Law360, that the first panel’s findings were “inconsistent with prior court rulings and raised ‘questions of exceptional importance to the protection of workplace freedoms.’”


Perhaps we will finally get to square these two decisions!  Or not.

But in any case we may get an answer to our question of “how many?”  And whether or not the court may craft a bright line test, or maybe  a “sliding scale of severity” test.

Stay tuned for the denouement of this difficult quantitative problem.