Third Circuit: A single slur – just one bad word — can create a hostile work environment.

For the first time, the Third Circuit Court of Appeals has recognized that “an extreme isolated act of discrimination can create a hostile work environment.”

Yep, one word can cost you many dollars!

In this particular case (Castleberry v. STI Group; opinion here), the plaintiffs claimed that, when working on a fence-removal project, a supervisor told the plaintiff and his coworkers that if they had “[n-word]-rigged” the fence, they would be fired. So, technically, there were two acts(s): (1) the slur; (2) the threat of termination. However, the Third Circuit clarified that “[a]lthough the resolution of that question is context-specific, it is clear that one such instance can suffice to state a claim [for a hostile work environment].” Indeed, the Third Circuit cited jurisprudence from the Fourth, Seventh, Eleventh, and DC Circuits to support its conclusion.

There’s more to a hostile work environment than just one bad word.

Either severe or pervasive behavior can create a hostile work environment. Notwithstanding, a plaintiff alleging a hostile work environment must demonstrate four additional elements:

1. the employee suffered intentional discrimination because of his/her [protected class],
2. the discrimination detrimentally affected the plaintiff,
3. the discrimination would detrimentally affect a reasonable person in like circumstances, and
4. the existence of respondeat superior liability [meaning the employer is responsible].”

When the plaintiff suffers an adverse, tangible employment action as a result of the hostile work environment created by a supervisor, then it’s game-set-match. Plaintiff wins. Otherwise, as we lawyers say, it depends. If a co-worker creates the hostile work environment, the plaintiff gets fired and he/she can establish that management-level employees knew, or should have known, of the abusive conduct, the plaintiff wins.

When the plaintiff does not suffer an adverse, tangible employment action as a result of the hostile work environment, the dynamic changes some. If the supervisor harasses the plaintiff (or a co-worker does and the company knows or should know about the harassment), then the employer has an affirmative defense. First, the employer must show that it exercised reasonable care to prevent harassment in the workplace on the basis of the plaintiff’s protected status, and also exercised reasonable care to promptly correct any harassing behavior that does occur. Second, the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

But one bad word can mean one painful lawsuit.

Let’s come full circle.

When an employee-plaintiff is subjected to a single severe incident that is bad enough to satisfy that element of a hostile work environment, how the heck is an employer going to show that the plaintiff failed unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer?

Umm…

Yeah, this Third Circuit decision is going to be a tough one for employers to swallow.