Manager's single slur can support race discrimination claim, 5th Cir. says

Dive Brief:

A single slur can support a workplace race discrimination claim, the 5th U.S. Circuit Court of Appeals ruled March 22 (Woods v. Cantrell, No. 21-30150 (5th Cir. March 22, 2022)).
The employee in Woods sued his employer, alleging, among other things, that his supervisor's use of a racial slur in reference to the employee created a hostile work environment. A lower court dismissed the claim, citing the 5th Circuit's 2004 position that "a single utterance of a racial epithet, despicable as it is, cannot support a hostile work environment claim."
On appeal, however, the 5th Circuit noted that in a 2007 opinion, it said that "[u]nder the totality of the circumstances test, a single incident of harassment, if sufficiently severe, [can] give rise to a viable Title VII claim." The lower court should reconsider its ruling in light of that position, the appeals court said, remanding the case.

Dive Insight:

Title VII of the Civil Rights Act of 1964 prohibits, among other things, race discrimination in employment. This includes race-based harassment severe or pervasive enough to alter the conditions of the victim's employment, according to the U.S. Equal Employment Opportunity Commission.

Generally, an employer can be held liable for harassment based on a protected characteristic if it knew about the harassment and failed to take action. When an employee's supervisor is the alleged harasser, however, workers face a lower bar for showing discrimination: "If the supervisor's harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer," according to guidance from EEOC, the agency that enforces Title VII.

And when it comes to determining whether an action amounts to illegal harassment, the EEOC seems to agree with the 5th Circuit: while isolated incidents generally will not support such a claim, according to commission guidance, an extremely serious incident may, it said. And "perhaps no single act can more quickly 'alter the conditions of employment and create an abusive working environment'" than a racial epithet used by a supervisor in the presence of subordinates, the appeals court said, citing a sister circuit.

A plaintiff last year asked the U.S. Supreme Court to weigh in on the question, petitioning it to review a 5th Circuit ruling that an employer didn't violate Title VII when it allowed a written slur to remain at a worksite for months, despite complaints. The court, however, declined the request, leaving the appeals court's ruling intact.

Management-side attorneys often recommend that HR pros train managers to avoid engaging in harassment themselves and to spot it in the workplace. They should know how to elevate issues to HR, experts say — and be held accountable if they fail to do so.

HR, then, should conduct a good-faith investigation, employment attorneys have said, and, if harassment is found, take reasonable steps to end the misconduct and prevent it from recurring.