Here's a very important reminder that even a single verbal incident of racial harassment can constitute a hostile work environment, especially if it involves one of the most inflammatory words in the American English idiom. The D.C. Circuit, in a pro se appeal, reverses summary judgment on § 1981 harassment, retaliation and discrimination claims by an African-American Fannie Mae employee, finding a single use of the n-word sufficiently severe to present a triable issue of fact.
Etoh v. Fannie Mae, No. 11-7127 (D.C. Cir. Apr. 5, 2013): The per curiam opinion succinctly summarizes the facts -
"Placide Ayissi-Etoh worked at Fannie Mae. He is African-American. When Ayissi-Etoh was promoted but denied a salary increase, he was allegedly told by his Fannie Mae manager: 'For a young black man smart like you, we are happy to have your expertise; I think I'm already paying you a lot of money.' On another occasion, a Fannie Mae Vice President allegedly shouted at Ayissi-Etoh to 'get out of my office nigger.' After Ayissi-Etoh filed a discrimination complaint with the Equal Employment Opportunity Commission, his Fannie Mae supervisor allegedly gave him a choice: drop the racial discrimination claim or be fired. Shortly thereafter, Ayissi-Etoh was terminated."
Plaintiff filed a complaint under § 1981 alleging discrimination, harassment and retaliation, as well as common-law defamation. The district court granted summary judgment, but the D.C. Circuit reverses all but the defamation claim.
The panel holds that the "young black man" comment was enough to warrant a trial on the race discrimination claim:
"Here, Ayissi-Etoh claims that Wagner explicitly denied him a raise because of his race. According to Ayissi-Etoh, [manager] Wagner said: 'For a young black man smart like you, we are happy to have your expertise; I think I'm already paying you a lot of money.' To be sure, Wagner denies making this statement. But when the issue comes down to a credibility contest of this kind, we cannot resolve the dispute at the summary judgment stage against the non-moving party. And the 'young black man' statement alone is direct evidence that in this case entitles Ayissi-Etoh to a jury trial."
The panel also holds that even the single use of the n-word was severe enough in this context to present a triable issue of fact on hostile work environment:
"We conclude that a reasonable jury could find [VP] Cooper and Wagner's behavior sufficiently severe or pervasive as to create a hostile work environment. To begin with, Cooper (allegedly) used a deeply offensive racial epithet when yelling at Ayissi-Etoh to get out of the office. As other courts have observed, 'perhaps no single act can more quickly alter the conditions of employment' than 'the use of an unambiguously racial epithet such as 'nigger' by a supervisor.' Rodgers v. Western-Southern Life Insurance Co., 12 F.3d 668, 675 (7th Cir. 1993) (internal quotations omitted). This single incident might well have been sufficient to establish a hostile work environment. But there was still more here. The incident was preceded by Wagner's 'young black man' statement that, as we have already held, was sufficient to support Ayissi-Etoh's claim that Fannie Mae intentionally denied him a raise on the basis of race. Moreover, this incident was followed by Ayissi-Etoh allegedly having to continue working with Cooper for nearly three months, until Cooper was ultimately fired. Medical records allegedly demonstrate that forcing Ayissi-Etoh to continue working with Cooper made Ayissi-Etoh ill and caused him to miss work on at least one occasion."
Finally, the court holds that there is sufficient direct evidence for a trial on the retaliation claim:
"In his affidavit, Ayissi-Etoh offers direct evidence of retaliation: He claims that [manager] Pesut gave him a choice between dropping his claims with the EEOC and being fired. Pesut denies making that statement. On summary judgment, however, we cannot resolve this credibility contest."
In a concurring opinion, Judge Kavanaugh underscores the seriousness of the use of this word in the workplace by a manger against an employee:
"It may be difficult to fully catalogue the various verbal insults and epithets that by themselves could create a hostile work environment. And there may be close cases at the margins. But, in my view, being called the n-word by a supervisor - as Ayissi-Etoh alleges happened to him - suffices by itself to establish a racially hostile work environment. That epithet has been labeled, variously, a term that 'sums up . . . all the bitter years of insult and struggle in America,' LANGSTON HUGHES, THE BIG SEA 269 (2d ed. 1993) (1940), 'pure anathema to African-Americans,' Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001), and 'probably the most offensive word in English,' RANDOM HOUSE WEBSTER'S COLLEGE DICTIONARY 894 (2d rev. ed. 2000). See generally ALEX HALEY, ROOTS (1976); HARPER LEE, TO KILL A MOCKINGBIRD (1960). Other courts have explained that 'perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of . . . 'nigger' by a supervisor in the presence of his subordinates.' Spriggs, 242 F.3d at 185. No other word in the English language so powerfully or instantly calls to mind our country's long and brutal struggle to overcome racism and discrimination against African-Americans."