Tuesday, July 10, 2018

Kavanaugh, the N-word, and Hostile Work Environment

To state a hostile work environment claim, an employee must allege that (s)he was subjected to discriminatory harassment that was "severe or pervasive." What about one incident? Obviously, that's not pervasive; but, when is one incident severe enough to create a hostile work environment?

New SCOTUS nominee, Judge Kavanaugh, addressed this issue in a concurring opinion in Ayissi-Etoh v. Fannie Mae. A Fannie Mae vice president allegedly yelled at an African-American employee to "get out of my office ni**er." So, how about it? Was that one verbal incident enough? Judge Kavanaugh says yes:
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 . . . 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 . . . . Here, as I see it, the alleged statement by the Fannie Mae Vice President to Ayissi–Etoh itself would establish a hostile work environment.
 HT: Robin Shea and Jon Hyman.