Over the past decade, the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) has substantially lowered the bar for demonstrating racial harassment in cases where a racial epithet is used. In older cases, African-Americans were basically expected to put up with such verbal abuse up to the point where it was repetitive and aimed directly at them. Subsequent cases have found a hostile work environment based on one use of the “N-word” and in cases where the plaintiff overheard the use of the term when it was not directed at them.
Earlier this week, the Fourth Circuit continued its evolution on this point, finding that the alleged use of the “N-word” by the 6-year-old son of a company’s owner constituted objective evidence of a severe and hostile work environment based on race. In Chapman v. Oakland Living Center, Inc., the plaintiff was a cook at an assisted living facility. She claimed that on multiple occasions, the owner’s child called her the “N-word,” on one occasion telling her that his father had described her using the term. She complained to the owner, who told his son to apologize, but the child refused. The plaintiff quit and filed a lawsuit claiming constructive discharge, discrimination, and harassment based on her race.
The district court dismissed the suit, finding that the child’s statement could not be imputed to the employer. On appeal, the Fourth Circuit reversed this decision, concluding that the question of whether the plaintiff complained about the conduct must be determined by a jury. The court then said that the employer’s alleged response to the incidents raised questions over the seriousness of its actions with regard to the child. Finally, the fact that the child allegedly told the plaintiff that his father had used the same language in reference to her met the standard for objectively severe conduct.
This decision reinforces the Fourth Circuit’s zero tolerance for use of racial epithets in the workplace, regardless of the source of the slur or context behind its use. Employers that do not take prompt and decisive steps to respond to and prevent future occurrences will likely face a jury trial with regard to claims for compensatory and punitive damages resulting from the impact of these slurs on the employee.