Lone use of racial slur justifies hostile workplace claim - 5th Circuit

6 minute read

The actual Title VII of the Civil Rights Act of 1964 document and pen is on display in the East Room of the White House in Washington, D.C., July 1, 2004. REUTERS/Mannie Garcia

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  • The 5th Circuit has allowed an employee to proceed with a Title VII claim based on a single incident where an employer allegedly used the n-word

A laborer once employed by the city of New Orleans, acting as his own lawyer at the 5th U.S. Circuit Court of Appeals, accomplished something quite remarkable last week.

With some unexpected help from a U.S. Justice Department amicus brief, Anthony Woods persuaded the appeals court that a single use of the most racist epithet in the American vernacular, in certain circumstances, can be sufficient justification for a hostile work environment claim under Title VII of the Civil Rights Act.

The ruling appears to be the first in which the 5th Circuit has explicitly allowed an employee to proceed with a Title VII claim based on a single incident in which an employer allegedly used the n-word. In 2004, as Judges Grady Jolly, Don Willett and Andy Oldham noted in last week’s opinion, the 5th Circuit ruled in Mosley v. Marion County that three incidents involving racial slurs were insufficient for a hostile workplace claim, although the appeals court subsequently ruled in 2007’s Equal Employment Opportunity Commission v. WC&M Enterprises Inc that a single incident, if “sufficiently severe” could be the basis of a viable Title VII claim. (That case alleged repeated and pervasive anti-Arab harassment after 9/11, not use of the n-word.)

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Woods’ allegations met that standard, the 5th Circuit said in a short opinion written by Jolly. Woods had worked as a laborer and painter for French Market Corp, which oversees operations of New Orleans’ flea market and farmers' market. He alleged that during his employment his supervisor called him a “lazy monkey-ass [n-word]” in front of other employees at a work site. The appeals court said that claim was actionable under the civil rights law's prohibition on hostile workplace environments.

New Orleans assistant city attorney Renee Goudeau didn’t respond to my email query. The city argued in its appellate brief that the trial court judge, U.S. District Judge Lance Africk of New Orleans, correctly applied 5th Circuit precedent when he held categorically that “a single utterance of a racial epithet, despicable as it is, cannot support a hostile work environment claim.”

Woods told me in a phone interview that he was disappointed the 5th Circuit revived only his hostile workplace claim and not his other claims of discrimination and due process violations. Woods said the incident with his supervisor, who allegedly leveled the incendiary slur at him and another Black employee, was deeply disturbing. “He didn’t just say the n-word,” Woods said. “He discredited my whole family.”

Woods also said he had no idea how the Justice Department knew about his case. “The lady from DOJ just called me one day about the n-word thing,” he said.

The Justice Department, which did not respond to my query on last week’s ruling, said in its amicus brief that the trial court failed to give adequate weight to the “egregious racially derogatory” language in the slur allegedly directed at Woods, which contained several highly offensive words, not just one intolerable epithet. The government also said the lower court should have considered the context of the incident, in which a supervisor allegedly slurred Wood in front of his colleagues.

Several other circuit courts, as the 5th Circuit said in its opinion, have discussed the unique perniciousness of the n-word, including the 3rd Circuit in a 2017 decision that allowed Black plaintiffs to proceed with a hostile workplace case alleging a single use of the slur. The 5th Circuit also quoted from Justice Brett Kavanaugh’s concurrence in the D.C. Circuit’s 2013 ruling in Ayissi-Etoh v. Fannie Mae. Kavanaugh, who was then a D.C. Circuit judge, described the n-word as “a term that sums up ... all the bitter years of insult and struggle in America, [a] pure anathema to African-Americans, [and] probably the most offensive word in English.”

Last year, you may recall, the U.S. Supreme Court declined to review a previous 5th Circuit employment case centered on the racial slur. In that case, the appeals court held that Robert Collier, a hospital worker from Texas, could not proceed with a discrimination claim based on his exposure to the epithet, which had allegedly been etched into the wall of an elevator he and other Black employees used regularly. Collier’s lawyers from the Georgetown Law Appellate Courts Immersion Clinic argued that Supreme Court precedent has left lower courts divided on whether the isolated use of the slur constitutes sufficient “severe and pervasive” harassment to warrant a hostile workplace claim. Despite amicus briefs from civil rights groups that emphasized the dehumanizing impact of the n-word, the justices passed up Collier’s case.

Collier counsel Brian Wolfman of Georgetown Law told me he believes that his client's Supreme Court petition, which received considerable media attention, may have influenced the 5th Circuit panel in the Woods case. “Our work wasn’t for nothing,” Wolfman said. “This moves the law in a positive direction.”

Wolfman said it’s notable that the 5th Circuit did not specify a particular test for when the slur's utterance could warrant a hostile workplace claim. The court noted that Woods’ supervisor had allegedly used the epithet in front of Woods’ co-workers, but the opinion, Wolfman said, did not say every future discrimination plaintiff must allege similar facts in order to survive dismissal. “They’re saying a case can go to the jury as long as conduct can be ascribed to the employer,” Wolfman said.

The 5th Circuit also seemed to go out of its way, Wolfman said, to highlight that if Woods can prove his allegation of a hostile workplace, he could be entitled to compensatory and punitive damages.

Perhaps the mention of potential damages was an oblique invitation from the 5th Circuit for a lawyer to represent Woods when his case goes back to the trial court. (He did have counsel for part of the previous trial court litigation but fired his lawyer during briefing on New Orleans’ dismissal motion.

“I’m screaming and hollering for help,” Woods told me. “I went from living a good, decent life when I worked for French Market to living a poor life now.”

Read more:

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

Supreme Court case asks justices to decide if exposure to N-word makes a workplace hostile

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.