Is a single racial slur by an employee’s supervisor enough to create a hostile work environment under § 1981 of the Civil Rights Act of 1866? The answer is yes according to the Third Circuit Court of Appeal’s decision in Castleberry v. STI Group, No. 16-3131 (3d Cir. July 14, 2017).
In Castleberry, two African American males were employed as general laborers. They claimed that while working on a fence-removal project, their supervisor threatened to fire them if they “n[****]r-rigged” the fence. The incident was confirmed by their coworkers and reported thereafter by the employees to a superior. Two weeks later, they were fired without explanation (and they were subsequently rehired, only to be fired again for “lack of work”).
The employees filed suit alleging harassment, discrimination, and retaliation in violation of 42 U.S.C. § 1981. The trial court dismissed the employees’ harassment claim because it determined the facts as pleaded did not support a finding that the harassment was pervasive and regular.
A claim under § 1981 involves the same analysis as an employment discrimination case under Title VII of the Civil Rights Act of 1964. To win a case for a hostile work environment based on race, an employee must prove that: (1) the employee suffered intentional discrimination because of his/her race; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person in like circumstances; and (5) the employer is responsible.
The employees in Castleberry appealed the trial court’s decision, arguing that the court applied the wrong legal standard when it required them to plead discrimination that was “pervasive and regular.” The Third Circuit agreed. While conceding that its case law was conflicting, the Third Circuit cleaned up the confusion and held, based on Supreme Court precedent, that the correct standard is “severe or pervasive.” The Third Circuit explained that “‘some harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable conduct will contaminate the workplace only if it is pervasive.’”
In Castleberry, the parties disputed whether the supervisor’s single use of the “n-word” is adequately “severe,” and if one isolated incident is sufficient to state a claim under that standard. The Third Circuit answered in the affirmative, but explained that for it to serve as the basis of a harassment claim, the employee must allege the incident was so “extreme to amount to a change in the terms and conditions of employment.” The Third Circuit’s decision is in harmony with the Fourth, Seventh, Eleventh, and D.C. Circuits.
While the Third Circuit’s decision creates a precarious situation for employers — it is important to keep in mind that in Castleberry, the supervisor’s expletive was used in the same breath as his threat to terminate the employees (which ultimately occurred). Moreover, this case was based on a motion to dismiss (based on the allegations of the complaint), rather than a motion for summary judgment (filed after the close of discovery after all the facts are uncovered). Indeed, a claim of employment discrimination survives a motion to dismiss so long as the required prima facie elements have been established, whereas a motion for summary judgment involves a burden-shifting test in which an employer may offer a legitimate, non-discriminatory explanation for its action.
Each case is very fact specific. Employers should continue to provide anti-harassment training to employees and managers. Supervisors should be reminded to choose their words carefully and consider the significant impact of even a single racially charged comment in the workplace.
Compliments of LeClairRyan, a member of the EACC