Recently, the U.S. 3rd Circuit Court of Appeals—which covers Delaware, New Jersey, and Pennsylvania—ruled that to establish a claim of workplace harassment under the civil rights statute known as Section 1981, the discrimination need only be “severe or pervasive,” which can be satisfied by a single racial slur when it’s so extreme that it “amount[s] to a change in the terms and conditions of employment.”
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Background
In March 2010, staffing-placement agency STI Group hired two African-American males, “Leon” and “Dave,” as general laborers to work at Chesapeake Energy Corporation. Shortly after they were assigned to a worksite, the only other African-American man on the crew was terminated.
Leon and Dave allege that on several occasions, someone wrote “don’t be black on the right of way” on the sign-in sheets. Additionally, despite having more experience than many of the white workers, they were often directed to perform menial tasks. They also allege—and numerous coworkers confirmed—that a supervisor used the “n” word in threatening to fire them if they hadn’t performed a project to his liking. Leon and Dave reported the incident to a different supervisor and were fired 2 weeks later.
The former employees filed a lawsuit against STI and Chesapeake in the District Court for the Middle District of Pennsylvania asserting claims for harassment, discrimination, and retaliation. The district court dismissed the claims, and the employees appealed.
Court’s Analysis
The 3rd Circuit reversed the lower court’s decision and ruled that the employees’ claims alleged sufficient facts to “state plausible claims of employment discrimination.”
Harassment claim. To state a claim for hostile work environment harassment under Section 1981, an employee must allege that he suffered intentional race-based discrimination that was “severe or pervasive,” detrimentally affected him, and would have detrimentally affected a reasonable person under similar circumstances.
The 3rd Circuit ruled that the district court incorrectly required that the discrimination be “severe and regular” rather than “severe or pervasive.” It noted that several other federal circuits (the 4th, 7th, 11th, and D.C. Circuits) have similarly interpreted the “severe or pervasive” standard to allow for a single incident to support a hostile work environment claim. The court’s ruling resolved years of inconsistent decisions in the 3rd Circuit interpreting the “severe or pervasive” standard.
In light of its interpretation, the court ruled that the supervisor’s single use of the “n” word could constitute severe harassment. It explained, however, that an employee has to plead that the incident “amount[s] to a change in the terms and conditions of employment.” Leon and Dave’s complaint met this standard because “[w]ithin the same breath” of using a racial slur, their supervisor threatened to terminate them.
The court ruled that not only could the former employees satisfy the “severe” side of the either/or requirement, but they could satisfy the “pervasive” side as well. The court reasoned that in addition to the supervisor’s use of a racial slur toward the employees, the sign-in sheet repeatedly contained racially discriminatory comments, and they were often forced to perform menial tasks while less experienced white workers were given more complex work.
Disparate treatment discrimination. The court next turned to the employees’ claim for disparate treatment discrimination, which required them to establish that the employer intended to discriminate against them based on their race and that the discrimination concerned one or more activities set forth in Section 1981.
The 3rd Circuit ruled that the employer failed to identify any nondiscriminatory reasons for terminating Leon and Dave and, therefore, failed to carry its burden under the McDonnell Douglas framework. This framework involves three stages:
- The employee must plead a prima facie (minimally sufficient) claim of discrimination.
- If he clears this initial hurdle, the burden shifts to the employer to identify a nondiscriminatory reason for the adverse employment action.
- The employee then bears the burden of establishing that the employer’s stated reason for the adverse employment action was a pretext (excuse) for discrimination.
Disparate impact discrimination. The 3rd Circuit refused to reverse the lower court’s ruling against the employees’ claim for disparate impact discrimination. It reasoned that Section 1981 provides only for claims of intentional discrimination—not claims in which a neutral employment practice has “the incidental effect of disadvantaging blacks to a greater degree than whites.”
Such a theory must be advanced under Title VII of the Civil Rights Act of 1964 rather than Section 1981. Regardless, the court explained, their allegations didn’t involve facially neutral policies, but instead involved policies that intentionally discriminated against African Americans.
Bottom Line
The 3rd Circuit’s decision resolves years of inconsistent precedent over what is necessary to establish harassment under Section 1981. The court ruled that the discrimination need only be “severe not “severe and pervasive”—and that a single racial slur can constitute severe discrimination, especially when it’s used in connection with a threat of the employee losing his job.
Gregory J. Wartman, and editor of Pennsylvania Employment Law Letter, can be reached at gwartman@saul.com or 215-972-7548.