In Gates v. Board of Education of the City of Chicago, the 7th Circuit Court of Appeals reversed the grant of summary judgment in the defendant’s favor in this Title VII racially hostile work environment case. The District Court had found that a supervisor’s use of the “N” word on 2 occasions and stating that he should write up the employee’s “black ass” were not severe or pervasive enough to rise to the level of a hostile work environment claim under Title VII. The District Court noted that the plaintiff faced a high bar as “the workplace that is actionable is one that is ‘hellish’”.
The 7th Circuit noted that the District Court erred in two respects: (1) first it relied upon the “hellish” standard which is not a standard the plaintiff must satisfy; and, (2) the District Court failed to focus on the difference in the 7th Circuit’s hostile work environment jurisprudence between co-worker hostility and supervisor hostility, especially when using such poisonous racial epithets as used here. The 7th Circuit noted that while a “hellish” work place would certainly be actionable, “plaintiff’s evidence need not show a descent into the Inferno”. The 7th Circuit noted that it had rejected the “hellish” standard multiple times since 2007 as being inconsistent with the Supreme Court’s opinion in Harris v. Forklift Systems, Inc. Rather, the question is whether the plaintiff’s evidence is sufficiently severe or pervasive to alter the terms of his work environment.
The 7th Circuit noted that the District Court also erred by relying upon cases involving minimal utterances or non-pervasive conduct by co-workers. The 7th Circuit noted that it had repeatedly treated a supervisor’s use of racially toxic language in the work place as much more serious than a co-worker’s. This is especially true where the supervisor addresses these derogatory comments directly to the employee, noting however that the comments need not be directed to the employee to be actionable if they are pervasive enough in the workplace. The 7th Circuit stated that no single act could more quickly alter the terms of employment and creates an abusive work place than a supervisor using the “N” word directly at his employees, or in their presence. “A supervisor’s use of the “N” word impacts the work environment far more severely than does use by co-equals.” In short, the 7th Circuit has not affirmed summary judgment for employers where such appalling language was used by supervisors.
With respect to the frequency or pervasiveness of the comments by the supervisor, the 7th Circuit stated that the district court had erred in its finding that the comments were not pervasive enough to sustain a hostile work environment claim. Again the District Court failed to consider the difference between direct and indirect comments and co-employee v. supervisor harassment. The 7th Circuit stated that if the only evidence was 3 racial comments by a co-worker the court would likely affirm summary judgment. However, less is required when the comments are made by a supervisor. A reasonable jury could conclude that the supervisor’s comments altered the terms of the plaintiff’s employment especially where the plaintiff took leave from work for medical treatment.
The take away of course is that employers must continue to review their EEO anti-discrimination/anti-harassment policies, continue to train supervisors on these policies and take corrective action where necessary in order to provide a defense to claims of supervisor harassment.
To view the appellate ruling, click here.