Supreme Court declines case over racial slur in workplace

Washington — The Supreme Court on Monday declined to hear a legal battle involving one of the most offensive words in the English language, spurning a case raising whether its utterance in the workplace even one time creates a hostile work environment.

The justices turned away an appeal from Robert Collier, a Texas man who sued the hospital where he was employed. Collier said supervisors ignored complaints about a carving of the N-word on the wall of an elevator he and other hospital workers often used. In rejecting the case, a ruling from the 5th U.S. Circuit Court of Appeals in favor of the hospital remains intact.

The question in the dispute was whether a single use, or “mere utterance,” of a racial epithet like the N-word gives rise to a hostile work environment under Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination on the basis of race.

Collier, a Black man who worked as an operating room aide for seven years, brought the suit after he was fired from Parkland Memorial Hospital in Dallas in 2016, claiming the hospital created a racially hostile work environment in violation of Title VII of the Civil Rights Act.

White nurses, he said, called Black employees “boy,” and two swastikas painted on the wall of a storage room were ignored despite employees reporting them to hospital management. But at the crux of Collier’s dispute was the carving of the N-word into the elevator wall. The former hospital aide said while he complained multiple times to supervisors about the incendiary graffiti and hate symbols, they remained untouched for months, and their presence made the hospital a hostile work environment.

A federal district court in Texas sided with the Dallas hospital, finding Collier’s work environment was not sufficiently abusive to constitute a hostile work environment. The court, however, acknowledged the N-word is “racially offensive and universally condemned,” and said the swastikas “could be interpreted as offensive to Collier” because of his race. 

A three-judge panel on the 5th Circuit agreed, noting in previous decisions 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.”

“The conduct that Collier complains of was not physically threatening, was not directed at him (except for the nurse’s comment), and did not unreasonably interfere with his work performance,” the 5th Circuit found. “In fact, Collier admitted that the graffiti interfered with his work performance by only one percent.”

In asking the Supreme Court to take up his appeal of the 5th Circuit’s decision, Collier’s attorneys claimed there was disagreement in the courts over whether use of a racial epithet like the N-word in the workplace can create a hostile work environment. In some of the federal judicial circuits, a jury may find use of the N-word at work is severe enough to violate Title VII, but in others, a single use of a racial slur is a non-actionable “mere utterance” that will not reach a judge or jury, they said in a filing with the high court.

“Regrettably, the word is frequently used in the workplace to demean Black employees,” Collier’s lawyers wrote. “So long as the disagreement between the circuits persists, Black employees in a significant swath of the country will, at a minimum, be forced to endure its prolonged and repeated use before they are able to reach the trier of fact on a hostile-work-environment claim.”

The hospital system, however, urged the justices not to take up Collier’s case, arguing that when it comes to the reach of Title VII in workplace harassment cases, “context matters” and the factual record in the case “is neither strong nor clear.”

The division among the federal courts regarding claims like Collier’s is itself demonstrated by two members of the Supreme Court, Justices Brett Kavanaugh and Amy Coney Barrett, who both heard legal battles brought by fired employees who argued they experienced hostile work environments in violation of federal law while serving on the lower courts.

As a judge on the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh wrote a concurring opinion in 2013 siding with a Black man who was fired from Fannie Mae. In a suit filed in federal court in D.C., the employee argued the enterprise violated federal anti-discrimination laws by maintaining a racially hostile work environment, as Fannie Mae’s vice president allegedly used the N-word in a comment to him.

Kavanaugh wrote that the alleged statement by itself “would establish a hostile work environment for purposes of federal anti-discrimination laws.”

“To be sure, as Fannie Mae notes, cases in which a single incident can create a hostile work environment are rare,” he said. “But 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.”

But as a judge on the 7th U.S. Circuit Court of Appeals, Barrett expressed a different view in a case involving a former Illinois Department of Transportation employee who sued the department and argued it subjected him to a hostile work environment, in part because a supervisor allegedly called him the N-word. 

The 7th Circuit ruled in favor of the department, and Barrett, writing the majority opinion, said the employee “can’t win simply by proving that the word was uttered. He must also demonstrate that Colbert’s use of this word altered the conditions of his employment and created a hostile or abusive working environment.”