Just What Does A Racially Hostile Environment Look Like? The Eleventh Circuit Provides Some Guidance
What constitutes a racially hostile work environment? Is one really bad comment specifically aimed at the plaintiff sufficient or do you need a sustained series of racial comments? What if you have both but no evidence that it affects the person’s work performance? In Brenda Smelter v. Southern Home Care Services, Inc., d.b.a. Rescare Homecare, the Eleventh Circuit addresses those questions.
From July 2 until September 9, 2013, Brenda Smelter, a black woman, worked for Rescare as a customer service supervisor. She struggled with her work and admittedly made errors, for which she was written up. On September 9, she got into a verbal altercation with a coworker and, given her prior performance issues and the fact that she was still in her probationary period, Rescare terminated her employment. Sounds pretty straightforward, right? Not so fast.
Although Ms. Smelter admits her skills may have been lacking, she claims that nearly every day of the eight weeks that she worked in Rescare’s Perry office two of her white coworkers made racist comments to each other. She testified that another customer service supervisor said:
- Black men were “lazy” and “the scum of the earth.”
- Black women “had babies on welfare.”
- President Barack Obama’s “big ears” made him look “like a monkey.”
- She did not know that black people could be buried on Sundays.
- Smelter’s hair made her look like a “mixed monkey” from the movie Planet of the Apes.
Smelter said that the office manager also made racist remarks, including that she saw black people exiting a bus at a Walmart store and commented that it looked like they were “chained together” and that she wished she could “send them all back . . . to Africa.” Although she never reported these comments to a supervisor until the last day of her employment, she testified that the branch manager overheard at least some of the remarks and that these racist comments were “funny to everybody that worked in the Perry office” with her, even the branch manager.
The most severe comment came on Smelter’s last day at work, when she got into a heated discussion with the other customer service supervisor who allegedly jumped up, hit her desk in a rage, and said “get out of my office . . . you dumb black n .” The branch manager investigated the altercation, and Ms. Smelter alleges that she told her about the prior racial comments and the epithet. Rescare concluded that Ms. Smelter started the altercation and terminated her employment.
Ms. Smelter sued for a racially hostile work environment and claimed that Rescare terminated her both because of her race and in retaliation for her report to the branch manager about the racial comments. Rescare moved for summary judgment, and the district court granted it. Ms. Smelter appealed.
The Eleventh Circuit’s Decision
The Eleventh Circuit agreed with the district court on the termination claims. The court found that Ms. Smelter had not offered evidence that Rescare’s reasons for terminating her were a pretext for race discrimination or retaliation. However, the court overturned the decision on the hostile work environment claim.
The court focused on whether Ms. Smelter had established that the harassment was sufficiently severe or pervasive to alter the terms of her employment and create a discriminatorily abusive working environment. It looked at four factors, assessing whether a reasonable jury could find it severe or pervasive:
(1) The frequency of the conduct – Eight comments in the two months was sufficiently frequent.
(2) The severity of the conduct – The negative comments about black people made around Ms. Smelter, capped off with the epithet directed to her on her last day, were sufficiently severe.
(3) Whether the conduct is physically threatening or humiliating, or a mere offensive utterance – Although the conduct was not necessarily physically threatening, the daily racial comments were sufficiently humiliating.
(4) Whether the conduct unreasonably interferes with the employee’s job performance -Although Ms. Smelter had little or no evidence that the conduct interfered with her work performance, “considering the totality of the circumstances, particularly the daily frequency and extreme severity of the harassment, including racist remarks made directly to Smelter about her” the other three factors sufficed.
Finally, the court found that a reasonable jury could conclude that Rescare had actual notice of the racial comments because Ms. Smelter testified that the branch manager overheard some of the remarks and thought they were funny.
Keep in mind that the court has to view the evidence in the light most favorable to Ms. Smelter. In this case, the coworkers denied making any racist comments, and the branch manager denied hearing any such comments or thinking they were funny.
First, the court comes close to saying that the one incident with the racial epithet could be sufficient. Do not assume one time isn’t enough to make it a federal case.
Second, that an employee does not report harassment is not evidence that it didn’t bother him or her. The court specifically notes that an employee’s failure to report harassment is not dispositive of whether the employee perceived the environment as hostile or abusive. So, if a supervisor witnesses conduct that may be close to the line but the employee does not react to it—investigate. Do not assume it will go away.
Third, an employee does not have to prove the harassment unreasonably interfered with work performance. If the other factors are strong, the absence of this one is not fatal.
Finally, Rescare won the termination claims. Given that the company terminated someone the same day that she reported that she had just been called the N-word, that is pretty amazing. Apparently Rescare had properly documented Ms. Smelter’s performance deficiencies. So, make sure you are addressing performance issues, even with probationary employees.