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Racial Slurs at Work: Are They Illegal?

Posted by Giovanna A. D'Orazio | Oct 20, 2020 | 0 Comments

During Amy Coney Barrett's Supreme Court nomination hearings, she was asked about a 7th Circuit decision she authored which found that that an employee being called the "n-word" (once, by a supervisor) did not constitute a "hostile work environment." This made the rounds on social media as evidence that she is a poor choice for the Court but the reality is that, as with most court decisions, social media is too simple to convey the context and nuances of a legal case.  In this instance, the decision appears to be in line with the law.

A “hostile work environment” is a pretty overused term that actually has a pretty strict legal meaning; if you meet it, then you can sue your employer for damages or other recourse.  Under Title VII – the federal law that prohibits race (and other forms of) discrimination – a hostile work environment requires that the harassment be so severe and pervasive as to alter the terms and conditions of someone's employment.  This is not, we repeat, not, an easy standard to meet.  (Going the next step to a constructive discharge, i.e., you quit because of that harassment and want to sue for your lost wages, is even harder).

From a human decency perspective, we know racial slurs in the workplace are wrong. It certainly seems like if your employer calls you the n-word, even once, you should be entitled to quit on the spot and have some recourse.  But, from an employment law perspective, you may be surprised to know that that's not necessarily the case, including in New York.

Prior to 2017, Second Circuit precedent was interpreted to mean that a single use of the n-word was not sufficient to constitute a hostile work environment, standing alone.  In 2017, the Court appears to have rejected that interpretation, and stated that its prior precedent should not be taken to mean that this could never happen.  Ultimately, however, the Court was not required to answer the question directly in that case and cases subsequent to that have included other evidence of a hostile work environment to support the claim.

So what recourse does an employee have when this happens?  Under federal law, if the bad actor is a coworker, the law wants you to complain.  Check your employee handbook, and make the report to your superior, boss and/or Human Resources.  If the bad actor is your boss, the law may excuse a failure to complain but we would typically say complain anyway, particularly if you have HR or your employee handbook speaks to that scenario.

Good faith complaints of discrimination are protected from retaliation, and this will give you an added layer of employment protection.

You can also consider making a complaint to the EEOC (the federal agency tasked with enforcing Title VII) or your state human rights commission or agency.

New York law is a little bit looser on hostile work environment, with the “severe and pervasive” requirement, as well as complaint requirements, recently having been removed from the Human Rights Law.  But there's still a lot of case law on the books under the old standard, including that has rejected hostile work environment claims based on isolated racial slurs.  So, you still may be better off complaining as opposed to quitting on the spot and expecting legal recourse.

If not a hostile work environment, then what is it?  Well, together with other acts, an isolated use of a racial slur can be a hostile work environment.  But, if it's standing alone, it can still be evidence of discrimination.  So, if you also get fired or passed over for a promotion, having been called racial slurs is certainly going to be evidence of discriminatory animus.  (In a discrimination case, it's the employee's burden to show that the employer's reason for the adverse employment action was really pretext for discrimination.) 

If you feel you are being discriminated against or are in a hostile work environment, you should consider speaking to an attorney prior to resigning from your position and seeking legal recourse.  If you have been fired and believe it was the result of discrimination – or retaliation for making a complaint of discrimination or harassment – give us a call, we're happy to see if we can help.

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna focuses her practice on plaintiff's employment and personal injury matters, with a particular interest in women's rights and employment discrimination and harassment.

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