A single racial slur in the workplace may be enough to establish a lawsuit for harassment, the U.S. Court of Appeals for the Third Circuit ruled July 14.
Clarifying muddled precedent about what needs to be alleged for workplace discrimination claims to survive the pleadings stage, a three-judge panel of the circuit determined plaintiffs need to show that harassment is “severe or pervasive,” rather than “severe and pervasive.” The decision in Castleberry v. STI Group reversed a ruling from the U.S. District Court for the Middle District of Pennsylvania, which had dismissed the claims.
Two African general laborers on a pipeline project for Chesapeake Energy Corp., Atron Castleberry and John Brown, brought harassment, discrimination and retaliation claims after they were terminated for reporting verbal abuse to supervisors, according to the complaint.
The plaintiffs said they had reported they had been told they would be fired if they “nigger-rigged” a fence they had been instructed to remove, the complaint said.
Castleberry and Brown were working for the staffing agency and subcontractor on the project, STI Group, the complaint said.
The defendants had sought to block the case early in the litigation, arguing that no courts found that a single, isolated incident could constitute a hostile work environment, but, noting some conflicting case law on the issue, Judge Thomas Ambro said the defendants’ arguments “miss the point.”
“The Supreme Court’s decision to adopt the ‘severe or pervasive’ standard—thereby abandoning a ‘regular’ requirement—lends support that an isolated incident of discrimination (if severe) can suffice to state a claim for harassment,” Ambro said. “Otherwise why create a disjunctive standard where alleged ‘severe’ conduct—even if not at all ‘pervasive’—can establish a plaintiff’s harassment clam?”
According to Ambro, case law in the district has conflicted for decades. He noted that cases going back to 2006 have used the “severe or pervasive” standard, but at least three cases between 2001 and 2012 used the “pervasive and regular” threshold. Also, in 2007, the court said the standard was “severe and pervasive,” and adding to the confusion, a case in 2001 said the standard was “pervasive and regular,” but then applied the “severe or pervasive” standard, Ambro said.
Ultimately, he said the standard that should be used is the “severe or pervasive” standard outlined by the U.S. Supreme Court as early as 1993.
“Plaintiffs are correct even though our precedent is inconsistent,” Ambro said.
Although whether an incident is sufficiently extreme and connected to the conditions of employment are “context-specific,” a single incident can rise to that level, Ambro said.
“Here plaintiffs alleged that their supervisor used a racially charged slur in front of them and their non-African-American co-workers,” Ambro said. “Within the same breath, the use of this word was accompanied by threats of termination (which ultimately occurred). This constitutes severe conduct that could create a hostile work environment.”
Daniel Horowitz of Swartz Swidler represented the plaintiffs, Terri Patak of Dickie, McCamey & Chilcote represented STI Group, and Donna Walsh of Myers Brier & Kelly represented Chesapeake Energy. Horowitz did not return a call for comment, and Patak declined to comment on the ruling July 14. Walsh referred a request for comment to a Chesapeake spokesman, who declined to comment.