BFV Perspectives, Sports Fans Guide 2 HR, | Jun 16, 2016

Hostile work environment? Examining Draymond Green’s slur

Hostile work environment? There was a lot of hoopla over Draymond Green’s use of the word “B___” during his confrontation with LeBron James in Game 4 of the NBA Finals.  Green was suspended from Game 5 of the series because he had amassed his fourth flagrant foul point of the postseason, which mandates a one-game ban.  The reported exchange between Green and LeBron that triggered the altercation went like this: James said he was the father of three kids and a man.  Green responded by telling James that “You’re still a b___.: Green’s comment agitated James.

James commented on the incident at the post-game press conference: “Draymond just said something that I don’t agree with. I’m all cool with the competition. I’m all fine with that, but some of the words that came out of his mouth were a little bit overboard. Being a guy with pride, a guy with three kids and a family, things of that nature, some things just go overboard, and that’s where he took it, and that was it.”

The Cavs went on to win Game 5 of the series in Green’s absence. Naturally, this story has caused a lot of buzz and debate.  Even Ayesha Curry, the wife of Warriors star Steph Curry, could not resist sharing her opinion about the LeBron-Green altercation.

Trash-talking has long been a part of the NBA and other professional sports.  Michael Jordan is notorious for his trash-talking as well as tennis great John McEnroe, who believes professional tennis could actually benefit from more trash-talking between players.  There does not seem to be any consensus as to what is acceptable and what is unacceptable when it comes to trash-talking in sports.

Determining whether a particular slur crosses the line is not an issue limited to sports.  In the employment arena, alleged slurs often are the central allegation of discrimination claims, especially claims alleging a racially or sexually hostile work environment.  Specifically, courts are often forced to decide whether a particular comment or comments can establish a hostile environment claim.

To establish a hostile work environment claim under Title VII of the Civil Rights Act, a plaintiff must show:
(1) that he belongs to a protected group;
(2) that he has been subject to unwelcome harassment;
(3) that the harassment must have been based on a protected characteristic of the employee, such as national origin;
(4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and
(5) that the employer is responsible for such environment under either a theory of vicarious or of direct liability.  
There is a also a threshold level that must be met:  to sustain a hostile work environment claim, the plaintiff must prove that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

As a general matter, a singular slur will not be sufficient to establish a hostile environment.  Even a series of comments may not be enough to establish such a claim.  The Eleventh Circuit Court of Appeals recently affirmed a lower courts’ dismissal of a racial discrimination lawsuit brought by an African-American train conductor against CSX Transportation, Inc (“CSXT”). CORNELIUS MAHONE, Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., Defendant-Appellee., No. 15-12821, 2016 WL 3230678, at *1 (11th Cir. June 13, 2016). In that case, the employee claimed that his coworkers’ use of the term “homeboy” was sufficient to create a hostile work environment.  The Court disagreed and provided the following analysis:

“[W]e consider ‘the totality of the circumstances’ including the following factors: the frequency of the conduct, the severity of the conduct, whether the conduct is physically threatening or humiliating or a mere offensive utterance, and whether the conduct unreasonably interferes with the employee’s job performance. We must keep in mind that neither Title VII nor § 1981 is a ‘general civility code’ that makes actionable ordinary workplace ‘tribulations.’ ‘[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.’ [citations omitted].

The court went on to conclude that, under the totality of the circumstances, a single incident in which a coworker used a racially-charged word during a staff-meeting, that was not physically threatening or humiliating, and did not cause the plaintiff to suffer an adverse employment action was not sufficient to establish a claim.

This decision is consistent with prior Eleventh Circuit decisions that have held that even more egregious alleged statements did not rise to the level of a hostile work environment.

Draymond Green is upset that he was suspended for Game 5, because of his antics on the court. Perhaps he can take a little solace in the fact that he would have beaten James in court if Green’s use of the “b__” word was alleged to have created a hostile environment.

As always, please contact me for more information on this topic.

BFV Perspectives, Sports Fans Guide 2 HR, | Jun 16, 2016
Kenneth N. Winkler
Kenneth N. Winkler

Kenneth Winklera shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.