One Slur Enough to Bring Racial Harassment Case, Court Rules
A recent decision by the U.S. Court of Appeals for the D.C. Circuit states that a plaintiff may bring a harassment claim against an employer for a single offensive slur, if the insult is egregious enough.
The case revolves around Magliore Ayissi Etoh, a black man originally from Cameroon, who was hired by Fannie Mae in April 2008 as a financial modeler. The company created a new “team leader” position later in the year, and out of a dozen people promoted, Ayissi-Etoh was the only one not to receive a raise. When he asked about getting an increase, he alleges that a supervisor told him, “for a young black man smart like you, we are happy to have your expertise; I think I’m already paying you a lot of money.”
He filed an internal complaint for racial discrimination in March of 2009. Several days later, while meeting with Thomas Cooper, another supervisor, about unrelated work issues, he claims Cooper “ordered him out of his office and then, when plaintiff did not immediately leave, yelled at plaintiff ‘Get of out my office, Nigger,'” according to court documents. Ayissi Etoh immediately lodged another internal complaint.
Fannie Mae alleged that he subsequently became insubordinate and difficult to manage. He then filed a complaint with the Equal Employment Opportunity Commission; meanwhile, Cooper was fired as a result of the internal investigation.
In October, Ayissi-Etoh himself was terminated, ostensibly for performance reasons. He added a retaliation charge to his EEOC complaint, but a district court dismissed the case in 2011. Fannie Mae offered credible reasons that he didn’t get a pay raise and for his termination, the court reasoned. As for the slur, “a ‘hostile work environment’ exists only when the ‘workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,’ the court ruled, citing precedent that “rarely, if ever, can an isolated incident establish a hostile working environment.”
Ayissi-Etoh, representing himself pro se, took the case to appeal and had it reinstated. “We conclude that a reasonable jury could find that Fannie Mae unlawfully discriminated against, harassed, and retaliated against Ayissi-Etoh,” the opinion states. “Ayissi-Etoh is thus entitled to a trial on those claims.”
To successfully bring a racial harassment claim, a plaintiff must show that the work environment is hostile, intimidating or offensive because of factors including “racial jokes, ethnic slurs, offensive or derogatory comments, or other verbal or physical conduct based on an individual’s race or color,” according to the EEOC definition. The Ayissi-Etoh case establishes a new precedent in establishing that a claim may advance based on a single incident.
“In my view, being called the n-word by a supervisor – as Ayissi-Etoh alleges happened to him – suffices by itself to establish a racially hostile work environment,” Judge Brett Kavanaugh wrote in a concurring opinion.
“Generally speaking to establish a hostile work environment, you need to establish that it is pervasive, on a daily basis really intolerable,” explains Alan Lescht, founding attorney at D.C. employment firm Alan Lescht and Associates. “The takeaway from this case will be, if the word used is so offensive, then that in and of itself is sufficient to make a case and go to trial.”
“In this case it’s racial,” Lescht says. “You can think of a word that is used based on gender, or national origin, or appearance or any protected class.”
Ayissi-Etoh will still have to convince a jury of his claim, but thanks to the D.C. Circuit decision he will get to have his day in court.