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Excerpted From: Lisa Holder, Eva Paterson, Mona Tawatao, Christina Alvernaz, Kelly M. Dermody , Daniel M. Hutchinson, Evan J. Ballan, Michelle A. Lamy, Jessica A. Moldovan, Nigar A. Shaikh, Lieff Cabraser Brief of Amici Curiae Social Science Experts, Race Equity Scholars, Law Professors, and Civil Rights Entities in Support of Petitioner Robert Collier, Petitioner, V. Dallas County Hospital District, Doing Business as Parkland Health & System, Respondent. No. 20-1004. Supreme Court of the United States. (March 18, 2021). (Footnotes) (Full Document)
The N-word Creates a Hostile Work Environment Because it Alters the Terms and Conditions of the Workplace
In recognition of the uniquely important role of the workplace in the health and dignity of workers, Title VII prohibits employers from creating or tolerating an environment where harassment is “sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris, 510 U.S. at 21 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). To determine whether abusive conduct is “severe or pervasive,” courts examine “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Harris, 510 U.S. at 23. This Court has cautioned that frequency is not the determinative factor; rather, even an “isolated incident” can be sufficiently “severe” within the meaning of Title VII if it is “extremely serious.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Also, the “conditions” of employment extend beyond its economic terms, such that “employees' psychological as well as economic fringes are statutorily entitled to protection from employer abuse.” Firefighters Institute for Racial Equity v. City of St. Louis, 549 F.2d 506, 514-15 (8th Cir. 1977) (quoting Rogers v. E.E.O.C., 454 F.2d 234, 238 (5th Cir. 1971)).
There is broad agreement that exposure to racial epithets, where deemed “severe and pervasive,” alters the terms and conditions of employment and is actionable discrimination under Title VII. See, e.g., Rodgers v. W.S. Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (quoting Meritor Sav. Bank, 477 U.S. at 67); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) (same, quoting Rodgers, 12 F.3d at 675); Richardson v. N.Y. State Dept of Corr. Serv., 180 F.3d 426, 439 (2d Cir. 1999), abrogated on other grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (same, quoting Rodgers, 12 F.3d at 675)). And the consensus is that when the N-word is wielded in the workplace, its toxicity is magnified. In Rodgers, the Seventh Circuit opined that “no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘Nigger’ by a supervisor in the presence of his subordinates.” 12 F.3d at 675. Likewise, in McGinest, the Ninth Circuit concluded that use of the N-word in reference to a Black employee and the prevalence of racially charged graffiti at the workplace were “significant exacerbating factors in evaluating the severity of the racial hostility.” 360 F.3d at 1116.
In the absence of definitive guidance from this Court, however, lower courts have split on whether a single utterance of (or limited exposure to) the N-word at work can be severe enough to constitute a hostile work environment. The Third, Fourth, and D.C. Circuits agree that it can. See Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017) (holding that “one such instance” of the N-word “can suffice to state a claim”); Boyer-Lberto v. Fontainebleau Corp., 786 F.3d 264, 280 (4th Cir. 2015) (en banc) (holding that “a reasonable jury could find that ... two uses of the ‘porch monkey’ epithet,” which the court deemed as “odious” as the word “Nigger,” “whether viewed as a single incident or as a pair of discrete instances of harassment - were severe enough to engender a hostile work environment”); Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 580 (D.C. Cir. 2013) (Kavanaugh, J., concurring) (“[B]eing called the [N]-word by a supervisor ... suffices by itself to establish a racially hostile work environment.”). In contrast, the Sixth, Seventh, Eighth, and Tenth Circuits - like the Fifth Circuit here - hold that an “isolated” use of the N-word is not serious enough to constitute actionable discrimination under Title VII. See Pet. at 12-16 (collecting cases).
The Third, Fourth, and D.C. Circuits' approach accords with the social science on the uniquely pernicious effects of the N-word at work, and amici respectfully urge this Court to adopt this approach.