Friday, May 10, 2013

Racial Slur Sufficient to Support Claim Against Fannie Mae


Judge Kavanaugh, concurring, in Ayissi-Etoh v. Fannie Mae, No. 11-7127, 2013 U.S. App. LEXIS 6870 (D.C. Cir. April 5, 2013) emphatically stated that a single use of the “N word”, in an oral statement from a supervisor to an employee, by itself, “would establish a claim for hostile work environment for the purposes of federal anti-discrimination laws.”  In that case, it was alleged that a Fannie Mae executive, Ms. Jaqueline Wagner, denied the African-American plaintiff a raise because Fannie Mae was already “paying [him] a lot of money” for a “young black man,” and it was further alleged that another Fannie Mae official, Mr. Thomas Cooper, once referred to plaintiff, using the “N word”.  Specifically, it was alleged that Mr. Cooper, at the end of a heated meeting with plaintiff, yelled at him, “get out of my office, n…..”.

Chief Judge Garland and Judge Griffith, in a per curiam opinion, concluded that a reasonable jury could find the aforesaid behavior sufficiently severe or pervasive as to create a hostile work environment, recognizing that Mr. Cooper had used “a deeply offensive racial epithet…”.  The per curiam opinion, recognizing that “perhaps no single act can more quickly alter the conditions of employment” than “the use of an unambiguously racial epithet such as ‘n…..’ by a supervisor.  Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (internal quotations omitted).”  Thus, the per curiam opinion recognized that “[t]his single incident might well have been sufficient to establish a hostile work environment.”  “But,” as the per curiam opinion notes, “there was still more here.”  The court went on to discuss, among other items, Ms. Wagner’s alleged “young black man” comment; the fact that the plaintiff had “to continue working with Cooper for nearly three months, until Cooper was ultimately fired”; that this working situation “made Ayissi-Etoh ill and caused him to miss work on at least one occasion”; and that a reasonable jury could find that Fannie Mae taking three months to fire Mr. Cooper did not constitute Fannie Mae promptly correcting the alleged hostile behavior.  Thus, the per curiam opinion found that the plaintiff had provided “sufficient evidence for a reasonable jury to find Fannie Mae liable”, and thus reversed the District Court’s entry of summary judgment against the plaintiff on his hostile work environment claim.

Judge Kavanaugh, in his concurring opinion, disagreed with Fannie Mae’s argument that the “singular [N word] comment” was “insufficient to establish an actionable hostile work environment.”  As Judge Kavanaugh put it, “[i]n my view, Fannie Mae is wrong on the law and wrong on the application of the law to the alleged facts of this case.  The alleged statement by the Fannie Mae Vice President to Ayissi-Etoh by itself would establish a hostile work environment for purposes of federal anti-discrimination laws.”  While Judge Kavanaugh conceded that “cases in which a single incident can create a hostile work environment are rare,” he argued that “saying that a single incident of workplace conduct rarely can create a hostile work environment is different from saying that a single incident never can create a hostile work environment.”  Judge Kavanaugh cited a number of cases in which single verbal (or visual) incidents were found to be sufficiently severe to justify a finding of a hostile work environment, such as Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906, 909 (8th Cir. 2003) (racially hostile graffiti that amounted to a death threat); and Jackson v. Flint Ink North American Corp., 370 F.3d 791, 795 (8th Cir. 2004), rev’d on reh’g on other grounds, 382 F.3d 869 (8th Cir. 2004) (a burning cross).

We have also previously written other articles regarding whether and when single incidences of harassment have been held to satisfy the “sufficiently severe or pervasive” standard of a hostile work environment claim – see, for example, here, and here.

The second to last paragraph in Judge Kavanaugh’s opinion, which cites to authorities including case law, a dictionary, and To Kill a Mockingbird, is quoted in full here, because to paraphrase it would be to do a disservice to Judge Kavanaugh’s strong and succinct argument:

It may be difficult to fully catalogue the various verbal insults and epithets that by themselves could create a hostile work environment. And there may be close cases at the margins. But, in my view, being called the n-word by a supervisor — as Ayissi-Etoh alleges happened to him — suffices by itself to establish a racially hostile work environment. That epithet has been labeled, variously, a term that “sums up . . . all the bitter years of insult and struggle in America,” Langston Hughes, The Big Sea 269 (2d ed. 1993) (1940), “pure anathema to African-Americans,” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001), and “probably the most offensive word in English,” Random House Webster's College Dictionary 894 (2d rev. ed. 2000). See generally Alex Haley, Roots (1976); Harper Lee, To Kill a Mockingbird (1960). Other courts have explained that “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of . . . [the “N word”] by a supervisor in the presence of his subordinates.” Spriggs, 242 F.3d at 185. No other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans.

A tip of the hat to Judge Kavanaugh for saying what needed to be said.

For more resources on this topic, see:

(a)    The following article (here) regarding a new study by Professor Ashleigh Shelby Rosette of Duke University’s School of Business, exploring workplace racial slurs. You can also find the full study here (subscription required); and

(b)   The following 2003 article (here) by Debra S. Katz and Alan R. Kabat of Bernabei & Katz, PLLC, on Harassment in the Workplace, particularly the “Single Incident Harassment” section, starting at page 25 of the article.


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