Can a single incident that the plaintiff doesn’t witness create a hostile work environment?

A single incident, like a supervisor calling a black employee the “n” word, may be enough to create a hostile work environment. But what if the victim doesn’t witness it?

For example, in a recent federal court decision, the plaintiff, a black man, testified in his deposition that his supervisor had referred to the plaintiff as a “stupid [expletive] [n-word]” to one of the plaintiff’s coworkers. Later, that coworker told the plaintiff about it. Is that single incident outside of the plaintiff’s presence severe enough to create a hostile work environment for him?

The “n”-word is bad. Very bad. The Fifth Circuit Court of Appeals has described the racial epithet as “a term that sums up . . . all the bitter years of insult and struggle in America, [a] pure anathema to African-Americans, [and] probably the most offensive word in English.” It added that “[p]erhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as [the N-word] by a supervisor in the presence of his subordinates.”

The defendant here tried to distinguish the Fifth Circuit’s earlier ruling by noting that the supervisor didn’t make the alleged comment in the plaintiff’s presence.

But the defendant’s argument left the court unconvinced:

“[I]t was made about Plaintiff in front of his fellow employee. Given the strength of the language used by the Fifth Circuit in its ruling, the Court finds that this distinction—that it was made at Plaintiff’s place of work to a subordinate about Plaintiff rather than being made at Plaintiff’s place of work to Plaintiff in front of subordinates—is one without a difference.”

Also, because the plaintiff’s supervisor allegedly used the “n”-word, the court deemed it immaterial whether the plaintiff complained about it or if the defendant subsequently took prompt remedial action.

The defendant’s fallback argument was even less convincing. It argued that the comment was hearsay and, therefore, inadmissible.

Hearsay is a statement that a party offers in evidence to provide the truth of the matter asserted in the statement. There are two potential layers of hearsay here: (1) the supervisor’s comment and (2) the coworker’s communication about it to the plaintiff. The supervisor’s comment was not hearsay because the plaintiff wasn’t offering it to establish that he was a “stupid [expletive] [n-word].” The coworker’s communication to the plaintiff also wasn’t hearsay because the hearsay rule has an exception that specifies that a statement offered against an opposing party made by the party’s agent or employee on a matter within the scope of that relationship while it existed is not hearsay. The coworker, a mechanic for the defendant, repeated the statement to the plaintiff at work.