There are a few words in our language that still have the ability to shock and hurt others. The N-word is one of them.
(I’ll use it sparingly here but note that courts use the actual language in court opinions too; for courts, accuracy is important.)
Frankly, it’s not a word that pops up in a lot of race discrimination cases in Connecticut any more. (A search of federal court decisions in Connecticut from 2008 revealed just 8 such instances.)
So what happens when an employee alleges that the N-word was used in the workplace?
In the case of Gaston v. Sun Services, a District Court of Connecticut case decided a few weeks ago, the court said that a single use of the word “nigger” in the employee’s presence, along with a single reference to being called “boy” was not enough to establish a hostile work environment.
While “offensive”, the court said that no reasonable juror could find these incidents constituted “pervasive harassment” or resulted in a workplace “permeated with discriminatory intimidation… sufficientlly severe or pervasive to alter the conditions” of Plaintiff’s employment.
In doing so, the court granted the employer’s motion for summary judgment.
The court cited the case of Alfano v. Costello, a 2002 case from the Second Circuit that is also worth reading as a reminder. In it, the court emphasized that single episodes typically are not enough to show a hostile work environment:
As a general rule, incidents must be more than “episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness.
The court in Alfano made another interesting observation — that “many” supervisors can be difficult to work with.
Everyone can be characterized by sex, race, ethnicity, or (real or perceived) disability; and many bosses are harsh, unjust, and rude. It is therefore important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination. Otherwise, the federal courts will become a court of personnel appeals.
So what should employers take away from this line of cases?
Well, for one, the use of the n-word should still be highly unacceptable at work or elsewhere. To state the obvious, the fact that a court is willing to excuse its usage once should not give employers license to use it or condone it at all. While an employer may still be able to win a hostile work environment where it is alleged, employers should still investigate claims that the word is being used and respond appropriately.
Employers should remember that courts will look to how employees are treated in general. Having a policy prohibiting a hostile work environment and taking steps to ensure that such a policy is being followed in practice, can help defeat a claim — even where one employee is alleged to have use the n-word once or even twice. Taking prompt remedial action will ensure that those isolated instances don’t become the basis of an actual legitimate claim.