The Rare Case Where the “N” Word Did Not Create a Hostile Work Environment
(This case summary comes with the warning: “Don’t try this at in your workplace.”) As we have previously discussed (in our September 2022 E-Update and March 2022 E-Update, for example), courts are quick to find that the single use of the “N” word in the workplace can create a hostile work environment under Title VII. But a recent case bucked that trend – although based on circumstances that were very specific to the situation.
In Scaife v. United States Dept. of Veterans Affairs, an African American employee sued her employer for hostile work environment harassment, based in part on a department lead’s calling her the “N” word outside her presence. In order to create a hostile work environment under Title VII, the conduct at issue must be sufficiently severe or pervasive. As a general matter, courts have found that the single use of the “N” word meets that standard.
In this case, while acknowledging that the “N” word is “an egregious racial epithet” and that “a one-time use of the epithet can in some circumstances warrant Title VII liability,” the U.S. Court of Appeals for the Seventh Circuit did not find such circumstances to exist here. Rather, because the employee heard about the slur from a co-worker, the Seventh Circuit stated that “Although racial epithets do not always have to be stated directly to a plaintiff to create an objectively hostile work environment, remarks that are stated directly to the plaintiff weigh heavier than when a plaintiff hears them secondhand.” Additionally, the employee heard about the slur months after it was made. Moreover, the individual making the slur, although a high-ranking department lead, did not have direct supervisory authority over the employee. And the Seventh Circuit also dismissed the department lead’s history of racial insensitivity, noting that, “While of course relevant, ‘second-hand harassment’ is not as great as the impact of harassment directed at [the employee] herself.”
While the employer in this case avoided hostile environment liability, we nonetheless warn employers that they should never tolerate such language in the workplace.