Non-Employees May Create a Hostile Work Environment

A recent case from the U.S. Court of Appeals for the Fourth Circuit reminds employers that they are responsible for ensuring that employees are not subjected to harassment by non-employees – including six-year old children.

Under Title VII, in order to create a hostile work environment, the complained-of conduct must be (1) unwelcome, (2) based on the plaintiff’s protected characteristic, (3) sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive work environment, and (4) imputable to the employer. In Chapman v. Oakland Living Center, Inc., an employee sued her employer, alleging that a hostile work environment was created by the owners’ six-year old grandson, who repeatedly called her the n-word, including the statement, “My daddy called you a lazy ass black n*****, because you didn’t come to work.” The employer argued that the repeated use of the n-word by a six-year old was not sufficiently severe to impose liability.

The Fourth Circuit, however, found that the child’s slurs could create a hostile environment. It was not just any child, but the grandson of the owners and the son of a supervisor being groomed to take over the family business. A reasonable person in the employee’s position could “fear that the child had his family’s ear and could make life difficult for her.” Moreover, one of the slurs was directly attributed to the child’s father, “My daddy called you…” And that slur was “the most egregious of all racial insults.” The Fourth Circuit distinguished between an insult from a customer’s son and the “powerful statement form a supervisor’s son.” The Fourth Circuit also noted that it did not matter if the child was too young to understand the impact of his words or did not intend to harm the employee, as it is the effect of the language that is actionable under Title VII.

This case reminds employers that they are responsible for protecting their employees from harassment by third parties – even from children. While the Fourth Circuit drew a distinction between a customer’s child and a supervisor’s child here, we note that employers who know of and ignore abusive language by any outsider could still find themselves facing liability under Title VII.