• Federal Jury Rejects Supervisor’s “Same Race” Defense to Employee’s Title VII Hostile Work Environment Claim
  • December 20, 2013
  • Law Firm: Troutman Sanders LLP - Atlanta Office
  • An African-American employee comes to you and complains that her supervisor is verbally harassing her with profanity and racial slurs.  After investigating the employee’s complaint, you find that the supervisor is also African-American.  Does it matter?  How should you proceed?
    The answer is that, yes, this does matter.  A supervisor’s racial epithets and slurs can create a hostile work environment, even if the supervisor and complaining employee are the same race.
    In fact, an African-American employee recently brought an action in a New York federal court (Johnson v. Strive East Harlem Employment Group, et al.) alleging that her employer and her supervisor, a black man, subjected her to a hostile work environment based on race.  The employee stated that her supervisor made lewd and derogatory comments to her and other employees.  Her initial complaints to Human Resources concerning the behavior were ignored.  So, the employee then recorded her supervisor as he criticized her workplace attire and unprofessional behavior while using racially provocative statements and the “n-word” to describe her.  He was recorded as saying, “You and [another employee] are just alike.  Both of you are smart as s---. But dumb as s---.  You know what it is . . . both of you are n-----s.  Y’all act like n-----s all the time.”  The supervisor continued, “And I’m not saying the term n-----s as derogatory.  Sometimes it’s good to know when to act like a n-----, but y’all act like n-----s all the time . . . .  Both of you [are] very bright, but both [of] y’all act like n-----s at inappropriate times.”  The employee was offended, and embarrassed by her superior’s statements.  She cried in the bathroom for forty-five minutes after the incident. 
    The supervisor argued that he used the “n-word” not in a racially derogatory way but as “tough love.”  He claimed that the “n-word” is used in multiple contexts in many communities and that it can even have an affectionate connotation.  He testified that he might put an arm around a friend and say, “This is my [n-word] for thirty years.  That means he’s my boy—I love him or whatever.”  The supervisor stated that he meant the words to indicate love when he directed them toward the complaining employee.
    The jury then deliberated on the landmark defense that hinged on the supervisor’s explanation of the double-standard surrounding the “n-word.”  The jury rejected the supervisor’s explanation and awarded the complaining employee $250,000 in compensatory damages and $30,000 in punitive damages.
    In another action, Weatherly v. Alabama State University, an Alabama federal court addressed similar facts.  There, three African American employees brought racial harassment claims based on the actions of their African American supervisors.  The evidence showed that the bosses routinely used the “n-word” in the workplace and in the presence of employees.  One supervisor even directed the language to an employee’s seven-year-old son. 
    The court focused on each employee’s perception of the conduct.  Even though Alabama State University did not challenge the employees’ ability to bring harassment claims, one employee contended that her heritage did not preclude her from being offended by racially insensitive remarks made by a superior of the same race.  The court recognized that the black employees felt humiliated and degraded by the comments, and the jury found that all three employees experienced a hostile work environment based on their race.  The court awarded amounts of $392,648.23, $309,453.06, and $376,509.65 to each employee, respectively. 
    Alabama State University then appealed certain decisions of the trial court.  Recently, in an eye-opening and strongly-worded opinion, the appellate court concluded by condemning the University’s acquiescence to such an abusive work environment, stating that the Court is “left to speculate who is in charge at ASU. Regardless, however, we are unnerved by the apparent acquiescence to, if not outright condoning of, the abusive work environment created by its high-level employees. Such conduct simply has no place in a work environment, especially at a publicly funded university.”
    Almost all employers are aware of their obligation to prevent and correct race discrimination and harassment.  Many employers, however, may not recognize that the race of the alleged harasser simply does not matter.  Employers cannot afford to turn a blind eye to “same race” harassment.
    The cases mentioned above clearly show that a hostile work environment may be found when a supervisor in a protected class uses slurs to demean an employee who is a member of that same protected class.  The Equal Employment Opportunity Commission has brought, settled, and prevailed in numerous “same race” discrimination and harassment cases over the years.  As these more recent cases now demonstrate, courts and juries will not apply a double-standard for use of the “n-word.”
    These cases are also a strong reminder that it is never appropriate to use racially derogatory terms in the workplace, regardless of the race of the speaker.  The same is true for statements that may be offensive on the basis of sex, age, or national origin.  Employers should never ignore employee complaints and should investigate and address all reports of harassing conduct.