Wednesday, November 16, 2011

Single Racial Slur Found to be Sufficiently Severe for Purposes of a Racial Harassment Claim

In Muldrow v. Schmidt Baking Co., Inc., 2011 U.S. Dist. LEXIS 70576 (D. Md. June 30, 2011), the Court, in denying the employer’s motion to dismiss, found that the use of the “n” word on one occasion is “extremely serious” and may be sufficient to state a claim of a hostile work environment based on race.  The Court relyied on cases such as Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001) (“…a single instance can suffice when it is sufficiently egregious”); Ezell v. Potter, 400 F.3d 1041, 1048 (7th Cir. 2005) (“[I]n the case of racial and ethnic slurs, some words are so outrageous that a single incident might qualify for a hostile environment claim.”); Cerros v. Steel Techs., Inc., 398 F.3d 944, 950-51 (7th Cir. 2005) (“we have recognized before that an unambiguously racial epithet falls on the ‘more severe’ end of the spectrum.”).  

In addition, the Court was dealing with conduct by non-employees.  Plaintiff was a general helper for the bakery, and thereafter was promoted to route salesman.  While at a store, which was a customer of the bakery, the store’s white, female, manager referred to plaintiff, an African American, using the “n” word.  The Court found that the employer’s response to harassing conduct of non-employees is evaluated using a negligence standard, finding that an employer can be liable if it took no steps to protect its employees and if it had actual or constructive knowledge of the situation.  See EEOC v. Cromer Food Servs., Inc., 2011 U.S. App. LEXIS 4279 (4th Cir. Mar. 3, 2011); See also Galdamez v. Potter, 415 F.3d 1015, 1022 (9th Cir. 2005) (employer can be liable for third parties if it ratifies their actions by failing to act); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 767 (2d Cir. 1998) (employer is generally not liable for non-employee conduct unless employer provided no reasonable avenue for complaint or knew of the harassment but failed to address it). 

For more on this subject, see our prior post on the topic here.

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