After being sued for race discrimination, an employer/company filed a motion to dismiss the claims against it, arguing that a single use of the n-word was not sufficient to state a claim for hostile work environment. The lower court agreed and dismissed the case. But in a decision of which employers should be aware, the 3d U.S. Circuit Court of Appeals reversed the dismissal, clarifying the applicable standard for reviewing a hostile work environment claim. Castleberry v. STI Group, 3d Circ., No. 16-3131, July 14, 2017.
Atron Castleberry and John Brown, both African-American males, were fired without warning or explanation two weeks after they complained that a supervisor used the n-word in talking to a group of workers that included Castleberry. Although both men were brought back to work soon afterward, they were terminated again for “lack of work.”
The men brought a lawsuit in federal court, alleging discrimination/harassment and retaliation. The court dismissed the claims on the basis that the facts did not support a finding that the alleged harassment was “pervasive and regular.” (Without illegal harassment, there could be no retaliation.)
To succeed on a race discrimination claim in the Third Circuit, a plaintiff must show, under a standard set by the U.S. Supreme Court, that the discrimination was “severe or pervasive.” Third Circuit case law, however, has been less-than-clear in articulating this standard. In fact, various past cases in the Circuit have referenced the terms “pervasive and regular” and “severe and pervasive” and, in fact, at times have used more than one standard within one case.
The difference between the correct standard – “severe or pervasive” – and the others is meaningful, because the disjunctive “or” in the correct standard allows isolated incidents, if extremely serious, to rise to the level of discrimination without a pervasive on otherwise ongoing element.
In the specific case being reviewed by the Third Circuit, no factual record had been developed, so there was no way for the court to determine whether the isolated incident complained of was sufficient to state a claim under the correct “severe or pervasive” standard. For that reason, the Court reversed the lower court’s decision, and remanded the case back for further review.
The lesson for employers is important: all complaints of discrimination should be reviewed carefully, whether or not the actions complained of occurred multiple times or on only one occasion. No assumption should be made that a single incident cannot support a claim of discrimination or hostile work environment. The determinative factor is whether the incident could “amount to a change in the terms and conditions of employment.” If so, the complained of action could be held to constitute discrimination and could support claims of harassment, hostile work environment, and retaliation.
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