Hostile Work Environment – Single Incident of Harassment

Can a single incident of harassment satisfy the “sufficiently severe or pervasive” standard (Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)) required to demonstrate an actionable hostile work environment claim under Title VII and similar statutes?

1. There is no “magic number” that gives rise to an actionable hostile work environment claim. Harris, 510 U.S. at 23 (“[W]e can say that whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.”). See also, e.g., EEOC v. WC&M Enters., Inc., 496 F.3d 393, 400 (5th Cir. 2007) (“Under the totality of the circumstances test, a single incident of harassment, if sufficiently severe, could give rise to a viable Title VII claims as a well as a continuous pattern of much less severe incidents of harassment.”); Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (noting that the relevant test for harassment is “quality or quantity”); Cerros v. Steel Techs., Inc., 288 F.3d 1040, 1047 (7th Cir. 2002) (“[A] sufficiently severe episode may occur as rarely as once, while a relentless pattern of lesser harassment that extends over a long period of time also violates the statute.”); Bowen v. Missouri Dep’t of Soc. Servs., 311 F.3d 878, 884 (8th Cir. 2002) (“A claimant need only establish discriminatory conduct which is either pervasive or severe.”); Smith v. Norwest Fin. Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir. 1997) (“The [Supreme Court’s] test is a disjunctive one, requiring that the harassing conduct be sufficiently pervasive or sufficiently severe . . .”).

2. In fact, courts have found that a single, sufficiently severe “episode” of harassment can create a hostile work environment. See, e.g., Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998) (finding a one-time event in which a waitress had her hair pulled by a customer, who also grabbed and placed his mouth on her breast, was severe enough to create an actionable hostile work environment); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) ("[E]ven a single incident of sexual assault sufficiently alters the conditions of the victim's employment and clearly creates an abusive work environment."); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995) (noting that a “single incident of sexual assault sufficiently alters the conditions of the victim’s employment and clearly creates an abusive work environment” under Title VII); Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000) (finding that a single instance of an “extended barrage of obscene verbal abuse” created a hostile work environment); Williams v. New York City Housing Auth., 154 F. Supp. 2d 820, 825 (S.D.N.Y. 2001) (“Racially motivated physical threats and assaults are the most egregious form of workplace harassment . . . The display of a noose would fall within this category of intimidating conduct.”); Johnson v. Potter, 177 F. Supp. 2d 961, 965 (D. Minn. 2001) (in finding that the snapping of a bullwhip at the feet of the plaintiff, an African American, created a hostile work environment, the court noted that such an action “raise[s] images so deeply a part of this country’s collective consciousness and history, any explanation of how one could infer a racial motive appears quite unnecessary”); Tootle v. Dep’t of the Navy, EEOC No. 07A40127, 106 LRP 8351 (2006) (finding co-worker harassment on a single “noose” incident).

3. Further, courts have also found that a single, sufficiently severe use of a derogatory word or phrase can create a hostile work environment. See, e.g., Rodgers v. Western-Southern Life Insurance Co., 12 F.3d 668, 671 (7th Cir. 1993) (“Far more than a ‘mere offensive utterance,’ the word ‘ni[**]er’ is pure anathema to African-Americans. Perhaps no single act can more quickly ‘alter the conditions of employment and create an abusive working environment’ than the use of an unambiguous racial epithet such as ‘ni[**]er’ by a supervisor in the presence of his subordinate.”) (quoting Meritor, 477 U.S. at 67); Rocha Vigil v. City of Las Cruces, 119 F.3d 871, 873 n.3 (10th Cir. 1997) (noting that Harris, supra, “does not mean that [a] severely degrading, racially derogatory insult of the worst kind escapes actionability under Title VII simply because it is used only occasionally”); Reid v. O’Leary, 1996 U.S. Dist. LEXIS 10627, at *4 (noting that “it is very possible that the term ‘[Co[*]n-A[*]s]’ is racially derogatory or severe enough, in and of itself, to create a hostile work environment”); Kwiatkowski v. Merrill Lynch, No. A-2270-06T1 (N.J. Super. Ct. App. Div. Aug. 13, 2008), opinion available at http://lawprofessors.typepad.com/laborprof_blog/files/kwiatkowski_v_merrill_lynch.pdf (“[i]n our view, the patent offensiveness of the ‘stupid f[*]g’ comment renders it quite similar to the [jungle bunny] comment made to the plaintiff in Taylor [, infra]. As plaintiff’s treating psychiatrist noted, the effect of such a comment was to make him question his identity and his decision to identify himself as a gay man in a straight world. Thus, as in Taylor [, infra], we believe the comment made to plaintiff was the equivalent of a ‘receiving a slap in the face” because the injury was ‘instantaneous’.”); Taylor v. Metzeger, 152 N.J. 490 (1998) (finding that the single utterance of the term “jungle bunny” was sufficient to convert plaintiff’s work environment into a hostile one); Gamboa v. U.S. Postal Service, EEOC Request No. 05890633 (1989) (complainant established a disability harassment claim based upon two derogatory comments to a deaf employee used on one occasion). See also, e.g., Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 452 (1990) (“The experience of being called ‘ni[**]er,’ ‘sp[*]c,’ ‘J[*]p,’ or ‘k[*]ke’ is like receiving a slap in the face. The injury is instantaneous.”); Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L.Rev. 2320, 2338 (1989) (“However irrational racist speech may be, it hits right at the emotional place where we feel the most pain.”).

Also worth keeping an eye on is the fact that, due to recent publicity garnered by high-level federal government officials’ and public personalities’ derogatory use of the “R” word (“re[*]ard”), use of the "R" word may be on the cusp of attaining “one strike, you’re out” status in the harassment context, similar to the “F” and “N” words. See, e.g., Lauren Beckham Falcone, Rahm Emanuel Deserves a Liberal Scolding, BostonHerald.com, Feb. 4, 2010, available at http://bostonherald.com/entertainment/lifestyle/view.bg?articleid=1230450&chkEm=1 (commenting on White House Chief of Staff Rahm Emanuel’s use of “fu[**]ing re[*]arded” during a White House strategy meeting, the author notes, “the use of the R-word is not an innocuous euphemism. It’s as hateful and belittling and bullying as racial slurs and homophobic epithets and sexual harassment.”). See also Jake Tapper and Huma Kahn, Obama Apologizes for Calling His Bad Bowling “Like the Special Olympics”, ABCNews.com, Mar. 20, 2009, available at http://abcnews.go.com/Politics/story?id=7129997&page=1 (discussing President Barack Obama likening his self-proclaimed sub-par bowling ability to that of a participant in the Special Olympics).