Appeals Court: 2 Racial Slurs Do Not Make a Hostile Work Environment

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May 15, 2014

By Eric B. Meyer

It was Gloria Steinem who, in discussing President Bill Clinton’s indiscretions with Paula Jones and Kathleen Willey, fashioned the “one free grope” rule.

That is, while not condoning President Clinton’s actions, Steinem concluded that one touching is not sexual harassment — at least as a matter law.

Well, this week the Fourth U.S. Circuit Court of Appeals, based in Richmond, VA., saw Steinem’s “one-free-grope” rule and raised her a “two-free-slurs” rule.

A single incident CAN be held as harassment

In Boyer-Liberto v. Fontainebleu Corp., a black plaintiff alleged that her co-worker referred to her as a “porch monkey” twice in two days, from which she claimed to have been subjected to a racially hostile work environment.

The United States Court for the District of Maryland disagreed.

On appeal, the Fourth U.S. Circuit Court of Appeals noted that “the ‘porch monkey’ term … was indeed racially derogatory and highly offensive, and nothing we say or hold condones it.”

Now, before I discuss the Fourth Circuit’s opinion, I note that, in some states, like New Jersey for example, a single slur create a hostile work environment. And Steinem’s “one grope rule” notwithstanding, a New York court noted that a single incident — albeit a forcible kiss — could be enough to demonstrate actionable sexual harassment.

What the court had to say

But those opinions are further up I-95. Further south, not only is a single slur hardly enough to create a hostile work environment, but, according to the Fourth Circuit, neither are two racial epithets:

A single racist statement [is] a far cry from alleging a [hostile work] environment of crude and racist conditions so severe or pervasive….[And] “a coworker’s use of [porch monkey] twice in a period of two days … as a matter of law, [is not] so severe or pervasive as to change the terms and conditions of [a black plaintiff’s] employment so as to be legally discriminatory.”

But, look folks, as I’ve said before, even if a single incident (or two incidents) is not enough to create a winning lawsuit, it may be enough to create a lawsuit that you’ll have to spend valuable time, money, and resources defending.

So, don’t condone this behavior in your workplace — ever.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.