What is a hostile work environment?
We hear that phrase used a lot. But what does the law consider to be a hostile work environment?
You won’t find the words “hostile work environment” anywhere in Title VII of the Civil Rights Act of 1964, the federal workplace anti-discrimination law. Rather, courts recognized the “hostile work environment” concept.
A hostile work environment involves unwelcome conduct based on race or some other protected class where the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
So, if Employee A calls Employee B the “N”-word one time, that’s not pervasive. But, is it severe enough to send to allow Employee B to present a hostile-work-environment claim to a jury? That’s one of the questions that a former hospital worker is asked the Supreme Court to answer.
But, let’s change the facts a bit. Suppose that instead of Employee A calling Employee B the “N”-Word, Employee B overhears Employee A using that word with Employee C.
Or what happens if Employee D is singing along to some music on his AirPods and repeats the “N”-word out loud in Employee B’s presence?
In what circumstances are racial epithets in the workplace “extremely serious” incidents sufficient to create a hostile work environment under Title VII, rather than nonactionable “mere utterances.” That’s the other question that the plaintiff wants the Supreme Court to answer.
Federal appellate courts that have addressed these issues are split. The Third Circuit Court of Appeals, which includes where I practice in PA and NJ, has held that one “N”-word can be enough to create a hostile work environment. Same for the Fourth Circuit. Meanwhile, the Fifth, Sixth, Seventh, Eighth, and Tenth Circuits do not recognize a hostile work environment based on a single use of a racial epithet.
We have a circuit split. But, will the Supreme Court resolve the issue? We’ll see.
In the meantime, regardless of whether a single use of the “N”-word is a legally hostile work environment, I generally don’t care much for the context in which the epithet is used at work. For me, usually, once is enough to trigger a termination of employment.