Racial slurs or offensive conduct must not occur in the workplace

August 28, 2017

Outrageous racial discrimination and harassment still occur in today’s workplace.

The U.S. Court of Appeals for the Third District recently affirmed that such behavior may be actionable under federal law.

Two African-American men sued when they were fired after receiving shocking mistreatment by their employer, a subcontractor to an energy company. The men claim that the only other African-American male was fired shortly after they were hired, according to court documents.

 They claim they were only permitted to clean around the pipelines rather than work on them, even though they had more experience than their white counterparts. When working on a fence-removal project, a supervisor allegedly used a derogatory comment that was confirmed by seven coworkers, court documents show.

After the last incident, the two African-American employees reported the offensive language to a superior. Both were fired two weeks later, they say without explanation. Although they were rehired shortly thereafter, they were terminated again for “lack of work.”

The employees sued for harassment, disparate treatment discrimination, disparate impact discrimination and retaliation.

The court found that one statement was sufficient to state a claim for harassment.

“Here plaintiffs alleged that their supervisor used a racially charged slur in front of them and their non-African American coworkers. Within the same breath, the use of this word was accompanied by threats of termination (which ultimately occurred). This constitutes severe conduct that could create a hostile work environment,” the court said.

The court also concluded that the plaintiffs may be able to establish the “pervasive” standard because of anonymous comments made on employee sign-in sheets and the assignment to menial tasks.

The court upheld that retaliation and disparate treatment could proceed, but stated that the case could not proceed on a “disparate impact” claim.

Of note, while most racial discrimination complaints are brought under Title VII, there is also a federal law  whereby racial discrimination complaints can be brought. That law states, “All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts . . . to the full and equal benefit of all laws . . . as is enjoyed by white citizens . . . .”

While the burdens of proof are generally the same, employees do not have to go through the Equal Employment Opportunity Commission before filing in federal court, and employees have a two-year statute of limitations to file in federal court, as opposed to the 300 days that Title VII provides to file with the EEOC.

Employers should learn from this case and demand that no racial or other slurs or offensive conduct occur in the workplace.

Such conduct is inexcusable and must be prohibited. In addition, immediately upon being on notice of this type of misconduct, employers must investigate and take prompt action to make sure that this behavior does not occur again.

Retaliating against those who complain also cannot be tolerated. All employees deserve to work in an environment where this type of outrageous racially charged behavior does not occur.