In Daniel v. T&M Protection Resources, Inc., 2017 U.S. App. LEXIS 7218 (2d Cir. Apr. 25, 2017), the Second Circuit Court of Appeals recently held that a single racial epithet could be sufficient, by itself, to create a discriminatory hostile work environment under Title VII. The Second Circuit also confirmed that a court can consider facially neutral incidents (i.e., incidents, which on their face, do not show unlawful discrimination) in determining whether a discriminatory hostile work environment exists.

By way of background, T&M Protection Resources, Inc. terminated Otis Daniel, a black male, from his job as ‘Fire Safety Director’ for purportedly violating an unwritten policy that prohibited receiving packages while at work. Daniel subsequently brought a lawsuit alleging, among other claims, a race-based hostile work environment. Daniel alleged that on one occasion his supervisor called him a “f__ing n____r,” and on another, accused him of stealing a computer.

The district court granted summary judgment in favor of T&M Protection, holding that a single racial slur cannot, as a matter of law, sustain a Title VII hostile work environment claim. The district court also found that the other harassment did not rise to the level of “severe or pervasive” so as to create a hostile work environment.

Daniel appealed and the Second Circuit reversed, stating that whether or not a hostile work environment exists depends upon whether conduct is severe or pervasive. It does not need to be both. When making this determination, the Second Circuit stated that the court should take into account the frequency of the discriminatory conduct; the severity of the conduct; whether the conduct is physically threatening or humiliating, or merely offensive utterance; and whether the conduct unreasonably interferes with an employee’s work performance.

Further, the Second Circuit held that a supervisor’s use of certain explicit racial epithets weighs heavily in the severity factor and is likely to create a hostile working environment, even pointing out that, “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his subordinates.”

The Second Circuit also found that the district court erred by failing to consider some “facially neutral” incidents that could have strengthened Daniel’s racial harassment claim. For example, the same supervisor who used the racial slur had previously accused Daniel of stealing a computer. Although facially neutral, this comment could have supported a claim for racial harassment when considered together with the supervisor’s use of the N-word. When the same person “engaged in multiple acts of harassment, some overtly [based on a protected characteristic] and some not,” then all acts can be considered to decide whether illegal harassment occurred.

Thus, reviewing “all the circumstances,” the Second Circuit held that Daniel’s alleged harassment “could be found to ‘alter the conditions of [his] employment and create an abusive work environment’ in violation of Title VII.”

If you are being harassed at work, regardless of the frequency of the harassment, it is always smart to contact a New York employment discrimination attorney to learn all your rights.

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