Dive Brief:

• An African-American sheet metal worker's claim alleging a hostile work environment and retaliation can move forward, the 5th U.S. Circuit Court of Appeals decided (Melvin v. Barr Roofing Co., No. 19-10214 (5th Cir. April 7, 2020)).
• Johnnie Melvin was "the target of racial slurs at work," with several of his co-workers, including his supervisor, calling him racial slurs on a daily or near-daily basis, according to court documents. In one incident, a white employee threw Melvin's work tools out the window of a moving car, indicated he was a "white supremacist" and said he would throw Melvin off a roof if they worked together again, Melvin alleged. Melvin complained to the company's vice president, and the next day, Melvin's supervisor told Melvin he didn't like "snitches." A couple weeks later, the vice president wrote Melvin up for poor job performance and "cussing" and told Melvin to go home for the day. His supervisor reiterated his dislike of "snitches" when he returned. Melvin was fired shortly thereafter for failing to submit to a drug test. He sued, alleging discrimination, hostile work environment and retaliation. 
• The district court granted summary judgment to the employer, explaining that Melvin failed to show the employer's reason for his termination was pretext, but the 5th Cir. reinstated Melvin's claims alleging a hostile work environment and retaliation. The court said the harassment alleged was sufficiently severe or pervasive to support his hostile work environment claim and that the employer was on notice because of Melvin's multiple complaints and may have failed to take remedial action. The court also said the temporal proximity — five days — between Melvin's complaint and his firing was close enough to show a prima facie case of retaliation.

Dive Insight:

To support a claim for hostile work environment, a workplace must be "intimidating, hostile, or offensive to reasonable people" in order to be considered unlawful. Petty slights, annoyances and isolated work incidents, unless extremely serious, generally aren't enough to make a case for unlawful behavior, according to the U.S. Equal Employment Opportunity Commission (EEOC).  

Of course, the use of racial slurs in the workplace can contribute to a hostile work environment. The 7th Cir. allowed a case in which a supervisor used three racial slurs over six months to proceed, stating that the supervisor's conduct was both severe and humiliating. Plaintiffs need not prove a "hellish" workplace to establish a hostile work environment, the court noted. The 9th Cir. has held that the use of four racial slurs in a worker's presence over one year was enough to find that the worker was subjected to an abusive work environment.

Prevention is the best tool for eliminating workplace harassment, EverFi Senior Vice President of Workplace Culture Elizabeth Owens Billie previously told HR Dive, suggesting a multi-step approach to its eradication. Employers can clearly communicate to employees that harassing conduct is not acceptable; set up a complaint process; provide anti-harassment training to managers and employees; and take immediate and appropriate action when complaint is received, among other actions, she said.  

Employers should also note that negative employment actions occurring shortly after an employee engages in a protected activity can lead to an inference of retaliation.