Is a single utterance of an offensive racial slur – specifically the “N-word” – enough to create a hostile work environment under Title VII of the Civil Rights Act of 1964?

A Black operating room aide in Dallas, Texas, has petitioned the U.S. Supreme Court to decide the question. The petition references a circuit-split on the issue as grounds for considering the case.  The underlying case is Robert Collier v. Dallas Cnty. Hosp. Dist., No. 19-10761 (5th Cir. Apr. 9, 2020), petition for cert. filed  (U.S. Jan. 15, 2021) (No. 20-1004).

Robert Collier sued his hospital employer in district court, claiming he was subjected to a hostile work environment, and was fired in retaliation when he complained about it.  Collier’s evidence of hostile work environment, included: (1) the N-word had been scratched into the work elevator wall and remained there for months despite Collier’s complaints to human resources; (2) swastikas were drawn on a wall in the hospital and were not painted over for months; and (3) a nurse called him “boy” (which Collier alleged was a common occurrence at the hospital).  The hospital moved for summary judgment, arguing that Collier was fired for insubordination, not for complaining about graffiti or comments.  The district court granted the motion.

On appeal before the U.S. Court of Appeals for the Fifth Circuit, Collier argued that summary judgment was inappropriate because several courts hold that a single utterance of the N-word can establish a claim of hostile work environment, and that racist graffiti at work may be even more offensive than a single utterance of a racial slur.

The Fifth Circuit affirmed the district court’s ruling, finding that Collier failed to establish that the complained of incidents unreasonably interfered with his work or caused him to feel physically threatened.  The Fifth Circuit also noted that, in previous rulings, it found “the oral utterance of the N-word and other racially derogatory terms, even in the presence of the plaintiff, may be insufficient to establish a hostile work environment.”

In his petition for certiorari, Collier asks the Court to decide:

(1) Whether an employee’s exposure to the N-word in the workplace is severe enough to send his Title VII hostile-work-environment claim to a trier of fact; and

(2) Whether and in what circumstances racial epithets in the workplace are “extremely serious” incidents sufficient to create a hostile work environment under Title VII, rather than nonactionable “mere utterances.”

In support of his petition, Collier notes that: (1) in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Court held that one “extremely serious” incident could be sufficient to create a hostile work environment; (2) the U.S. Courts of Appeals for the Third and Fourth Circuits have ruled that one use of the N-word (or a similarly offensive slur) is enough to defeat summary judgment (although the Fifth, Sixth, Seventh, Eighth, and Tenth Circuits have ruled that a single “utterance” is not enough); and (3) in 2013, Justice Brett Kavanaugh, who was then serving on the U.S. Court of Appeals for the D.C. Circuit, wrote that the N-word “sums up … all the bitter years of insult and struggle in America, [is] pure anathema to African-Americans, and [is] probably the most offensive word in English.” Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 580 (D.C. Cir. 2013) (Kavanaugh, J., concurring) (citations omitted).

Jackson Lewis attorneys are monitoring this petition and will report on further developments. In the meantime, if you have questions regarding these issues, do not hesitate to contact a Jackson Lewis attorney.