Racism reared its ugly head in Boston’s Fenway Park when Red Sox fans shouted racial slurs, including the “N-word” at Baltimore Orioles center fielder Adam Jones. The incident ignited public outcry including a statement by Boston’s mayor who denounced the fan’s conduct and said the actions did not represent the city at large.
It is often said that sports is a microcosm of American society. This is one example where this statement sadly holds true. Our courts continue to grapple with lawsuits alleging race discrimination and racially hostile work environments. At the heart of many of these cases are the alleged use of racial slurs including the type of slurs lodged at Adam Jones. Whether racial slurs themselves can constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs.
Without a bright line test, it is difficult for an employer to know with any certainty when a slur or slurs will create liability. For example, would the Red Sox fans’ use of the “N” word at the game be sufficient to create a hostile work environment if it occurred in the workplace?
At least one federal court recently held that it could. In Daniel v. T&M Protection Resources, LLC, the Second Circuit Court of Appeals held that the one-time use of a severe racial slur from a supervisor to a subordinate can potentially, by itself, support a hostile work environment claim. In its decision, the Court noted prior precedent stating that “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment” than the use of an unambiguously racial epithet such as ‘N*******’ by a supervisor in the presence of his subordinates.” Thus, while one racial slur generally might not create a hostile work environment, the one-time use of a severe racial slur, such as the “N” word, might be enough.
The Court’s opinion is not binding on employers outside the Second Circuit (New York, Connecticut and Vermont). However, it still serves as a cautionary reminder that the utterance of a single racial slur, if severe, could possibly support a discrimination claim depending upon the circumstances. Employers should, therefore, be proactive in training its management team about the importance of maintaining a healthy work environment and the need to promptly address any complaints of discrimination.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.