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Supervisor Overhearing Racist Remarks Makes Employer Potentially Liable for Harassment

    Client Alerts
  • October 10, 2018

Over the past decade federal courts have demonstrated a decreasing willingness to tolerate the use of racist language in the workplace. In repeated circumstances, courts have found even a single use of a racial slur sufficient to create a hostile and offensive work environment due to race under Title VII. A new decision from the Eleventh Circuit Court of Appeals extends this line of cases by finding an employer potentially liable in a circumstance where the employee never complained about the alleged racial slurs until she was terminated.

In Smelter v. Southern Home Care Services, Inc., an African-American plaintiff alleged that she was subjected to an almost daily barrage of racial slurs and comments from co-workers. She was eventually terminated for poor performance and filed suit under Title VII, alleging that she had been subjected to a hostile and offensive work environment due to race. The district court granted summary judgment to the defendant, concluding that the employer was never placed on notice of the alleged conduct because the plaintiff never complained about her treatment.

The Eleventh Circuit reversed this decision, remanding the case for jury trial. First, the court held that the almost daily use of racial insults and slurs created a hostile and offensive work environment. Second, the court used testimony from the plaintiff’s supervisor to conclude that she was aware of the co-workers’ conduct. The court imputed notice of the alleged racist behavior to the employer based on the supervisor’s knowledge, even in the absence of any complaint by the employee.

This case demonstrates once again that employers must maintain zero-tolerance for the use of racist comments, slurs, or behavior at work. The days are long gone when employers could defend such cases by questioning the severity of the conduct, or by relying on the employee’s failure to file a formal complaint. Any general knowledge by a supervisor of racist conduct will result in an assumption that the employer knew the conduct was occurring.