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One Remark May Be Enough to Create A Hostile Work Environment

Published by and on June 27, 2017

Employers should take all allegations of harassment seriously, even if the harassment occurs infrequently.

Employers should take all allegations of harassment seriously, even if the harassment occurs infrequently.

The Second Circuit recently refused to rule out the possibility that a one-time use of severe racial slur could support a hostile work environment claim. In Daniel v. T&M Protection Resources, LLC, the plaintiff brought a hostile work environment claim against his supervisor, who allegedly called the plaintiff a “f—— n—–” on one occasion.

To show that a hostile work environment exists, a plaintiff must show “that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his or her work environment,” and that a specific basis exists for holding his or her employer liable for the supervisor’s actions. The Second Circuit found that its precedent did not foreclose the possibility that a single racial slur could, by itself, support a hostile work environment claim. While the frequency and number of harassing remarks should be considered in a hostile work environment claims, the severity of the remarks is also another factor to consider (as the remarks must be either severe or pervasive; they do not have to be both). Therefore, the Second Circuit concluded that the district court was incorrect in rejecting this possibility as a matter of law.

In addition, the Court held that facially neutral incidents that also involve the alleged harasser may bolster harassment claims. In Daniel, the plaintiff alleged that his supervisor —- the same one who called him a racial slur —- also inquired as to whether Plaintiff stole a computer, which on its face, is a neutral accusation. But because of the supervisor’s racist remarks, the Court this incident should have been considered as part of his racial harassment claim as it could have occurred because of hostility toward Plaintiff’s race.

The Second Circuit also concluded that the plaintiff’s allegations of approximately twenty instances of harassment over a 15-month period could be sufficient to support a hostile work environment claim. In arriving at this determination, the Second Circuit noted that allegations that a plaintiff was harassed based on several protected characteristics —- such as race, sex, and national origin —- should also be considered when evaluating whether a hostile work environment as a whole existed.

Welter Insight

Employers should not tolerate harassment or discrimination in the workplace and should take every accusation or complaint claiming harassment seriously. A hostile work environment may still exist even though harassing comments or remarks are being made infrequently. Therefore, when investigating claims of harassment, employers should seek to investigate the full context in which harassment occurred.

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