“No Magic Number” of Insults Required to Support Hostile Environment Claim

A supervisor’s near-daily use of offensive comments about Puerto Ricans over a two-year period was sufficient to sustain the employee’s claim of a hostile work environment, even if the comments did not affect the employee’s work performance, according to the U.S. Court of Appeals for the Eleventh Circuit.

In Ortiz v. School Board of Broward County, Florida, an employee brought national origin discrimination claims against his employer based on his supervisor’s near-daily comments disparaging Puerto Ricans, as well as Blacks and Muslims. Some of the comments were made directly to or in front of him, while others were made outside his presence but reported to him. In addition, the supervisor refused to use the employee’s name, instead referring to him as “Puerto Rican.” He also used the offensive ethnic terms “wetback” and “spic.” The employee objected to the supervisor and complained to the management, but nothing was done.

As noted elsewhere in this E-Update, a hostile work environment exists when discriminatory conduct is so severe or pervasive as to alter the conditions of the plaintiff’s employment and create an abusive working environment. In this case, the Eleventh Circuit found that the conduct, occurring near-daily over a two-year period, “reflect[ed] a work environment permeated with discriminatory intimidation, ridicule, and insult.” Moreover, the slurs “wetback” and “spic” fall on the more severe end of the spectrum of comments, and the severity was compounded by the fact that the employee’s supervisor made the comments. While the employee could not remember the specific number of times that such comments were made, the Eleventh Circuit noted that “there is no magic number of racial or ethnic insults that a plaintiff must prove.” The Eleventh Circuit acknowledged that, while the evidence that the employee’s job performance was impacted was weak, the totality of the circumstances – given the frequency and severity of the comments – supported a hostile environment claim.