Appeals Court: 2 Racial Slurs Do Not Make a Hostile Work Environment

By Eric B. Meyer

It was Gloria Steinem who, in discussing President Bill Clinton’s indiscretions with Paula Jones and Kathleen Willey, fashioned the “one free grope” rule.

That is, while not condoning President Clinton’s actions, Steinem concluded that one touching is not sexual harassment — at least as a matter law.

Well, this week the Fourth U.S. Circuit Court of Appeals, based in Richmond, VA., saw Steinem’s “one-free-grope” rule and raised her a “two-free-slurs” rule.

A single incident CAN be held as harassment

In Boyer-Liberto v. Fontainebleu Corp., a black plaintiff alleged that her co-worker referred to her as a “porch monkey” twice in two days, from which she claimed to have been subjected to a racially hostile work environment.

The United States Court for the District of Maryland disagreed.

On appeal, the Fourth U.S. Circuit Court of Appeals noted that “the ‘porch monkey’ term … was indeed racially derogatory and highly offensive, and nothing we say or hold condones it.”

Now, before I discuss the Fourth Circuit’s opinion, I note that, in some states, like New Jersey for example, a single slur create a hostile work environment. And Steinem’s “one grope rule” notwithstanding, a New York court noted that a single incident — albeit a forcible kiss — could be enough to demonstrate actionable sexual harassment.

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What the court had to say

But those opinions are further up I-95. Further south, not only is a single slur hardly enough to create a hostile work environment, but, according to the Fourth Circuit, neither are two racial epithets:

A single racist statement [is] a far cry from alleging a [hostile work] environment of crude and racist conditions so severe or pervasive….[And] “a coworker’s use of [porch monkey] twice in a period of two days … as a matter of law, [is not] so severe or pervasive as to change the terms and conditions of [a black plaintiff’s] employment so as to be legally discriminatory.”

But, look folks, as I’ve said before, even if a single incident (or two incidents) is not enough to create a winning lawsuit, it may be enough to create a lawsuit that you’ll have to spend valuable time, money, and resources defending.

So, don’t condone this behavior in your workplace — ever.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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2 Comments on “Appeals Court: 2 Racial Slurs Do Not Make a Hostile Work Environment

  1. These rulings always give me pause. A manager would only have to call me a bitch (and if he or she calls me a black bitch I don’t know WHAT I’d do) or a nigger once to alter that relationship FOREVER. I’m not sure these judges understand the weight of certain words, especially in context.

  2. Shameful. No way should this be condoned. It’s not even about winning money in a lawsuit. What about respect, dignity, professionalism in the workplace? Would making anti-Semetic remarks be ok once or twice? What about a few derogatory holocaust references? Come on people! Educate and use common sense.

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