In recent years, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) has lowered the bar for plaintiffs to take racial harassment claims to a jury trial when the alleged conduct involved use of racial slurs. However, in separate lawsuits against the same employer decided on August 27, the Fourth Circuit concluded that both plaintiffs’ allegations failed to rise to the level of prohibited harassment.

In the first case, Evans v. International Paper Co., the plaintiff alleged that she was subjected to a series of comments and criticisms from white co-workers that resulted in her decision to resign her employment. These incidents included allegations that a supervisor had yelled at her and criticized her work, that she heard co-workers had said they hoped she would not return from maternity leave, and that white co-workers had criticized her hairstyle and behavior. The Fourth Circuit concluded that these claims collectively failed to rise to the level of a hostile and offensive working environment due to race. Viewed objectively, they did not take into account a promotion and generally positive evaluations received by the plaintiff, along with her own prior expressions of satisfaction with the job.

The second case, Perkins v. International Paper Co., involved a technician who resigned and contended that he and other African-American employees were subjected to disparate treatment under company work rules, overtime requirements, and low employee rankings. The Fourth Circuit affirmed summary judgment, stating that the alleged incidents were infrequent and did not involve the types of threats or humiliating conduct that would legally justify resigning due to a hostile work environment. While difficult and unpleasant, the complained of conditions were not intolerable.

In both cases, the Fourth Circuit applied an objective test that set a fairly high bar for an employee who quits to claim that they were constructively discharged due to racial harassment. In the absence of direct racial slurs or other degrading conduct, the employee may be limited to a standard disparate treatment discrimination claim instead of a harassment claim where the employee leaves work due to the alleged impact of such treatment on him or her.