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Even Rhetorical Use of the "N-Word" Sufficient to Allow Racial Harassment Claim to Go to Jury

    Client Alerts
  • July 25, 2018

Over the past several years, we have reported an increasing number of federal appeals court decisions that have characterized even single instances of certain racial slurs as sufficient to constitute hostile environment harassment under Title VII. Earlier this month, the Seventh Circuit Court of Appeals continued this trend, reversing a lower court dismissal of a harassment claim where a supervisor allegedly used the slurs as illustrative of his personal lack of racism.

In Robinson v. Perales, the African-American plaintiff was a university police officer who became involved in a dispute with his supervisor over a skin condition that prevented him from shaving. In a meeting, the supervisor denied that this request was based on race, noting the fact that he was himself Hispanic and had been subjected to racist behavior during his career. In this conversation, the supervisor allegedly used the “n-word” multiple times to illustrate his point. The plaintiff also claimed that the supervisor directly referred to him using this term on a later occasion.

The Seventh Circuit reversed a grant of summary judgment for the defendant, remanding the case for jury trial. The court noted that even in a rhetorical context, use of this term was so highly objectionable that the overall intent could have been to harass the plaintiff. When combined with the alleged direct use of this word toward the plaintiff as well as other claimed actions, the totality of the circumstances would require a jury determination as to whether this constituted a hostile working environment.

This case demonstrates the need for employers to take a no tolerance position with regard to the use of racial slurs in the workplace. The context surrounding the use of these terms, as well as evidence of infrequent use may not be enough to avoid a jury trial for harassment from employees exposed to this language.