Source: Shawn Grant, Labor Law Journal, Vol. 72, Issue No. 2, Summer 2021
Title VII of the Civil Rights Act of 1964 requires that plaintiffs alleging racial harassment prove that the harassing conduct was so severe or pervasive as to create an abusive and hostile work environment. However, plaintiffs encounter obstacles to bringing hostile work environment claims, based on the use of racial epithets, such as the n-word. The “severe or pervasive” standard, as the Supreme Court has defined it through the Court’s decisions, and as some courts have interpreted it, creates a high bar to establishing a prima facie case. Frequently cases based on the single or isolated use of the n-word result in dismissal or summary judgment for defendants, depriving plaintiffs of the opportunity to have their cases heard by a jury. In many cases, the court’s concern with whether the use of the “n-word” is sufficiently “pervasive” to alter the conditions of the victim’s employment, has caused the severity of the impact of the word’s one time use on the victim to be overlooked. This has resulted in the current split among the circuit courts.
Dissatisfaction with the federal courts’ interpretation of the severe or pervasive standard and the implications for the increasing number of sexual harassment cases, due in part to the #MeToo movement, has led some states to enact legislation, or amend current laws, eliminating or narrowing the application of that standard. Victims of hostile work environment based on race, particularly those who are basing their claims on incidents involving the single use of the n-word, may have a greater chance of success by bringing their claims under the laws of states that have revised their legislation to reduce the interpretive barriers to such claims.