After years of dithering, the U.S. 5th Circuit Court of Appeals (which covers Texas) recently decided a single racial slur (one in particular) standing alone can create an unlawful hostile work environment entitling the employee to mental anguish and punitive damages and an award of fees to the person’s lawyer. Read on.
Epithet Used Calls for Jury Trial
Anthony J. Woods, who is black, worked for the city of New Orleans. He claims his supervisor, who is Hispanic, used a racial slur directed at him while in the presence of other employees. He alleges the epithet was a one-time occurrence. (For purposes of brevity and dignity, I am not repeating it.)
The trial court dismissed Woods’ entire lawsuit. The 5th Circuit agreed except for his race-based hostile work environment claim under Title VII of the Civil Rights Act of 1964. No, the appeals court said, that one goes to a jury.
What Changed?
Before Woods’ case, the 5th Circuit seemed to embrace the “one-bite rule,” i.e., a racial slur, no matter how horrific, cannot be the basis for a hostile work environment claim. And that might still be the case, but the new ruling suggests the following facts made a difference and distinguish it from the court’s previous decisions:
- Woods’ allegation was very specific, and the epithet was wrapped within a second slur;
- The epithet was not only aimed directly at the employee but also stated in the presence of his coworkers; and
- When looked at in the entire context of the slur, the epithet summons up “all the bitter years of insult and struggle (for Blacks) in America, (and is) pure anathema to (them) and probably the most offense word in English.”
As an aside, why was the 5th Circuit so disinclined to hold previously that a single use of a racial epithet was enough to create a claim? I think the court was concerned an employee could manufacture a claim by alleging the word was used when it was not. That also might explain why the first two factors above seemed so important to the current three-judge panel.
The upshot is the 5th Circuit found some daylight between previous precedent and the present case. Woods v. LaToya Cantrell et al., (5th Cir., March 24, 2022).
Bottom Line
First, to sustain a hostile work environment claim, the employee must have proof the employer’s conduct adversely affected a term or condition of employment. In other words, the conduct made it more difficult for the individual to perform the job duties.
In Woods’ case, the epithet would make it more difficult for him to perform the job not only in the moment but also in the long term. Why? The word reflects a hateful mindset, and the employee will always wonder: “Is that comment what the manager really thinks of me?” The consequences can therefore be debilitating when it comes to doing the job. Apologies won’t work.
Second, some think no attorney will take a case in which the only claim involves a hostile work environment and the damages are most likely to be soft ones. I’m not so sure. We have Gen Z students coming into law schools now.
A consensus is Gen Z’ers are much more oriented toward social justice issues and not monetary rewards. And remember that even if the damages award is small or modest, the lawyer is still entitled to fees as a matter of course, which can be sizeable and often in excess of the damages themselves.
Third, wrong is wrong. The use of an epithet is wrong even if it’s uttered between members of the same race or used in what is claimed to be a jocular fashion. Hear it? Shut it down.
Finally, the argument will now be made that certain words directed at women or Hispanics will be sufficient unto themselves to create a hostile work environment claim for their protected classifications. Stay tuned.
Michael P. Maslanka is a professor at the UNT-Dallas College of Law. You can reach him at michael.maslanka@untdallas.edu.