One strike, you’re out? The isolated use of a racial slur may be enough to establish a hostile work environment claim. While the Second Circuit did not squarely answer the question in the affirmative, in Daniel v. T & M Prot. Res., LLC, the court allowed the claim to proceed. To establish a hostile work environment claim, a plaintiff must show: that the workplace was permeated with discriminatory intimidation that was sufficiently severe to alter the conditions of the work environment and that a specific basis exists for imputing the conduct that created the hostile environment to the employer. So what does severe or pervasive mean in this context? Can an isolated incident rise to the level of pervasive?
In its decision, the Second Circuit relied upon a prior decision, as follows: “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 … by a supervisor in the presence of his subordinates.” According to the court, depending on the use and context of the particular word, it might be possible for a single use of a racial slur to rise to the level of hostile work environment.
In Daniel, a 34-year old African-American male claimed he was subjected to discrimination because of his race and the perception that he was gay. The plaintiff cited several instances of harassment in his claim over the 15-month time period he worked for the employer. However, he alleged one of the incidents, where his supervisor yelled at him and used the “N word,” was so severe that it alone constituted harassment.
The Second Circuit vacated the judgment of the district court in favor of the employer, and remanded the case for further proceedings consistent with its order.
Employers would be well advised to consider this ruling when conducting internal investigations into employee allegations of harassment. While in the past an employer may have taken a more lenient approach with regard to an offender who is guilty of an isolated incident, employers should not discount isolated incidents on their face. Whether a hostile work environment exists in any particular situation is a fact intensive analysis and requires careful consideration from the employer. Moreover, it is the responsibility of the employer to ensure that all employees are comfortable and safe.