In recent years, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) has moved toward a position recognizing that certain workplace occurrences automatically meet the legal requirements for a hostile work environment based on race. Use of certain racial epithets or actions are so potentially traumatic to employees that courts will not need to determine whether they cross the hostile environment line in a given circumstance.

Last month, the Seventh Circuit Court of Appeals took the opposite approach with respect to a black employee who alleged that he found a noose at work. In Cole v. Bd. of Transp. of N. Ill. Univ., the court concluded that workplace display of a noose can be enough to constitute a racially hostile environment, but that the situation still requires individual analysis. In the case at hand, the Seventh Circuit concluded that the incident was not severe enough to allow the case to proceed to trial.

Last week, the U.S. Supreme Court declined to review another case raising questions over whether use of certain racial slurs automatically relieves plaintiffs of having to demonstrate the existence of a hostile working environment. Absent a final high court pronouncement, each federal circuit will apply its own judgment, meaning that employers in the Fourth Circuit should assume that these incidents can lead to liability under the race discrimination provisions of Title VII.