Government

As SCOTUS declines racial slur case, civil rights lawyers say they'll keep pushing

6 minute read

(Reuters) - The odds were always way against Robert Collier, the Black former hospital aide who petitioned the U.S. Supreme Court to decide whether his exposure to the most racially offensive word in the American vernacular was so dehumanizing that he was entitled to sue the hospital for creating a hostile workplace.

It's rare, after all, for the Supreme Court to grant review of any case – and Collier's would have presented unique challenges for the court. He alleged Dallas' Parkland Hospital failed for months to remove graffiti of the n-word that was etched into the wall of an elevator he and other Black employees used to access the hospital cafeteria. Collier's lawyers presented his case as an opportunity for the Supreme Court to decide whether that exposure alone was enough to send Collier's claim under Title VII of the Civil Rights Act to a jury trial.

The hospital's lawyers at Carter Arnett provided the Supreme Court with plenty of rationales for denying review in their brief opposing certiorari. Parkland said it was not clear that Collier, who was fired for insubordination after refusing a supervisor's instruction to work in a particular area of the hospital, had ever reported the graffiti to human resources officials. The hospital also disputed Collier's assertion of a split among the federal circuits on whether a single use of the n-word makes a workplace hostile, arguing that appellate courts have reached varying conclusions based on each case's unique facts.

On Monday, the Supreme Court followed the predictable course and denied Collier's petition. But according to Collier counsel Brian Wolfman of the Georgetown Law Appellate Courts Immersion Clinic and two lawyers who represented Collier amici, that does not mean the Supreme Court petition was in vain.

To the contrary: Wolfman and amicus counsel told me Monday that civil rights lawyers have good reasons to push for Supreme Court review even when the justices aren't likely to take cases.

"Our petition has created momentum for change," said Wolfman in an email. "(It) advanced the cause of racial justice in the workplace by showing that what may appear to some employers and even some courts as tolerable, even legally routine, should be viewed as anything but tolerable or routine."

Collier's petition, said Wolfman and amicus counsel, succeeded in raising awareness among three crucial constituencies: the general public, the civil rights community and the justices themselves.

The petition received substantial media attention, including my story in February about the justices calling for a response from the hospital. AP and NBC subsequently ran stories about Collier's case, and all of the broadcast networks reported Monday on the Supreme Court's decision not to grant review. At the very least, such coverage ought to make employers like Parkland respond quickly when employees say they've been subjected to the n-word.

The petition also piqued the interest of civil rights advocates. The Howard University School of Law Human and Civil Rights Clinic, the NAACP Legal Defense & Education Fund and other racial justice organizations and scholars all filed amicus briefs backing Collier's request for Supreme Court review.

"Now we're watching the issue," said Howard professor Tiffany Wright. "We're ready to jump in."

Amici can make a big difference in a case like this one, said Wright, a former clerk for Justice Sonia Sotomayor. Collier had testified that his performance at work wasn't much impaired even though he regularly saw the epithet carved into the elevator wall. His stoicism, Wright said, is exceptional – and she wanted the justices to know that. "Having lived life as a Black person," she said, "I know it's impossible for it not to affect your performance." (Counsel for Parkland hospital did not immediately respond to requests for comment about the certiorari denial.)

To emphasize that point, the Howard brief argued the bold position that any use of the n-word can justify a Title VII claim. "Even a single invocation," the brief said, "can be so traumatic and so dehumanizing that it negatively changes the terms and conditions of employment." The brief from law and social science professors who have studied the impact of the n-word agreed that even a purportedly isolated use of the epithet can constitute racial discrimination.

That brings me to the most important goal an unsuccessful Supreme Court petition can accomplish: grabbing the justices' attention. The Supreme Court, Wolfman said, has never heard a case involving racial harassment in the workplace. By highlighting uncertainty in the lower courts about the workplace implications of the n-word, the Collier petition alerted the Supreme Court about a recurring issue.

Civil rights advocates, said Wright, have to play a long game at the Supreme Court. She cited the example of qualified immunity for government officials. The justices turned away a dozen cases challenging qualified immunity before agreeing last year to hear Taylor v. Riojas, which involved a prison inmate's allegations that corrections officials violated his 8th Amendment rights by confining him for six days in a cell contaminated with human waste.

Wright said she believes the justices finally granted review of a qualified immunity case – albeit not one involving police officers – because of the pressure from a steady stream of petitions and amicus briefs.

Collier amicus counsel Mona Tawatao of the Equal Justice Society agreed, citing the Supreme Court's long road to marriage equality. "Sadly, because of the persistence of the n-word's use as a slur in the workplace, this issue will undoubtedly come before the Supreme Court again," she said. "The court is not impervious to evolving public opinion nor should it be."

That's small consolation today for Robert Collier, who won't get to allege to a jury that on his way to lunch at work, he had to look at the n-word carved into an elevator wall. But Collier's lawyer Wolfman said he's trying to look forward.

Along with Collier's amici, he said, "(we) will be continuing the fight for a more just, equitable workplace."

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