Workers in New York, Vermont, and Connecticut may now point to a single utterance of a racial slur when claiming that an employer has created a discriminatory hostile work environment in violation of Title VII of the Civil Rights Act of 1964. This is significant as courts within the Second Circuit generally have sought a steady barrage of racial comments when establishing a hostile work environment, and were reluctant to find isolated or sporadic use of racial slurs sufficient. This changed last week as the court found that “the one-time use of a severe racial slur could, by itself, support a hostile work environment claim when evaluated in the cumulative reality of the work environment.” Daniel v. T&M Prot. Res., LLC, 2017 U.S. App. LEXIS 7218, at *3-4 (2d Cir. Apr. 25, 2017).
To establish a hostile work environment, a plaintiff must show: “(1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his or her work environment; and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer.” Petrosino v. Bell Atl., 385 F.3d 210, 221 (2d Cir. 2004). Whether the use of racial slurs creates a hostile work environment depends on the “quantity, frequency and severity of those slurs.” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). After Daniels, and the clarification that a single use of a racial slur is sufficient to create a hostile work environment, workers need only emphasize the severity of the verbal harassment endured without having to chart and tally each instance of discrimination.
The impact of the Court’s decision is substantial as it allows workers to stand up to discrimination as soon as they are confronted with it. As the Second Circuit has previously stated, “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet…by a supervisor in the presence of his subordinates.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014). Workers in the Second Circuit now join those from the Sixth, Seventh, and DC Circuits as those who can assert claims for discrimination stemming from a single instance of severe verbal harassment.
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About Innessa Melamed Huot
Innessa Huot is a Partner at Faruqi & Faruqi, LLP’s New York office and focuses her practice on employment law and wage and hour class action litigation.
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