By Diane Williamson
Please note that the information contained in this post is for informational purposes and is not to be considered legal advice. This blog post does not create or imply an attorney-client relationship. If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.
This month our office is taking part in the Racial Equity Challenge sponsored by the New York State Bar Association. Anyone can participate (no law degree required): https://nysba.org/racialequitychallenge/. In taking part in the Challenge, I have been thinking about different types of racism, e.g., systemic racism, implicit bias, etc. Sometimes from a white perspective, it seems like overt racism is largely over, but what better context than employment discrimination to make us realize that overt racism is still very much alive in the United States.
In 1964, with Title VII of the Civil Rights Act, the federal government made employment discrimination based on race (and color, religion, sex, and national origin) illegal. Nevertheless, studies show that racist employment practices still exist. Most people are familiar with the study that demonstrated that identical resumes were 50% more likely to get an interview when the name at the top sounded like a white person’s name instead of a black person’s name. A 2017 study found that racist hiring practices have changed little since 1990.
In the landmark case Rogers v. EEOC, the Fifth Circuit Court of Appeals held that the practice of racially segregating patients in a doctor’s office could amount to discrimination in the terms, conditions, or privileges of employment, thereby violating Title VII. 454 F.2d 234 (5th Circ. 1971), cert. denied, 406 U.S. 957 (1972). The principal opinion in the case concluded that employment discrimination was not limited to the “isolated and distinguishable events” of “hiring, firing, and promoting.” Id., at 238. Rather, Title VII could also be violated by a work environment “heavily polluted with discrimination,” because of the deleterious effects of such an atmosphere on an employee’s well-being. Id.
Despite the recognition that racism at work could amount to unlawful discrimination, courts have been reluctant to hold that any and all displays of racism rise to the level of changing the workers “terms, conditions, or privileges of employment.”
In 1982, the Fifth Circuit stated that in order to be unlawful “a discriminatory and offensive work environment [must be] so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers.” Vaughn v. Pool Offshore Co., 683 F.2d 922, 924 (5th Cir. 1982) (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1981). Wow. It is crazy to think that previously workers were told by courts that racism in the workplace was not unlawful unless it completely destroyed their emotional and psychological stability.
In that case, the plaintiff failed in showing that the abusive work environment was unlawfully based on race regardless of the fact that he was called a “nigger,” “coon,” and “black boy” and a pool house nearby had “KKK Headquarters” written on it. Id. at 924. There were several other utterances of racial epithets and a workplace culture of violent hazing. Id. at 923. The court wrote that all the employees used similar racial epithets “without apparent hostility or racial animus.” Id. at 924. Basically, in 1982, the Fifth Circuit court ruled that using racial epithets in the workplace was normal.
Compare that 1982 case to one currently before the Supreme Court. Presently, the Supreme Court is being asked to consider whether a hostile work environment claim can survive summary judgment when there was racist graffiti (the N-word and two swastikas) and the plaintiff was called “boy” one time—potentially outside of the limitations period. Collier v. Dallas County, 3:17-CV-3362-D. (June 6, 2019 5th Cir.) Justice Kavanaugh in a DC Circuit Court opinion wrote that one instance of the N-word is severe enough to constitute racial harassment. Ayissi-Etoh v. Fanny Mae, 712 F.3d 572 (D.C. Cir. 2013). That being said, Justice Coney Barret ruled against summary judgment in a case with one utterance of the N-word. Terry Smith v. Illinois Department of Transportation (7th Cir. 2019). It is possible that racist graffiti is even more disturbing than a spoken utterance because the worker does not know who wrote the epithet, and the worker must endure it every day along with the knowledge that his coworkers seem to acquiesce to its presence. The Supreme Court decision in this case will help to determine the continued strength and relevance of the Civil Rights Act.
In some ways it seems that Title VII is not keeping up with society’s notions about the unacceptability of racism. Recently, a federal district court dismissed a complaint made by Whole Foods employees that the grocery store was selectively enforcing a dress code and penalizing employees who wore Black Lives Matter facemasks but not other employees who wore other slogans. Meanwhile, Taco Bell apologized for allegedly firing an employee for wearing a Black Lives Matter face mask, offering the longtime employee his job back. The latter reconciliation was due to a Facebook Live post and news coverage, not a court case.
While we do not yet know what effect the Supreme Court’s ruling in the above case will have on the federal discrimination standard, we can take some comfort in the fact that New York recently amended its discrimination law to make it easier to show that harassment is unlawful. Under the new standard, a plaintiff need not show that the harassment is severe or pervasive, but only that it altered the terms and conditions of employment. The employer can defend itself if the complained of conduct did not rise above the level of “petty slights or trivial inconveniences,” but it is hard to imagine that a coworker using a racial epithet could be construed as a “petty slight” in 2021.
Unfortunately, the changes to New York law have yet to be tested in court. We can only hope that our laws against discrimination will not permit racial epithets to persist in the workplace unpunished.