Everyone knows, or hopefully should know, that Title VII of the Civil Rights Act of 1964 protects employees from encountering a hostile work environment due to their race. What many may not know is that there is another federal law that also prohibits racial discrimination in the form of hostile work environment. That statute, §1981 of the Civil Rights Act of 1866, was the subject of a significant recent decision from the Third Circuit Court of Appeals that addressed what legal elements must be established in order to prove a hostile work environment claim under § 1981. Employers are wise to heed the edicts of this decision because it has expanded the potential situations where a racially hostile work environment can be established under this law.
In Castleberry v. STI Group, No. 16-3131 (3d Cir. July 14, 2017), two African-American male employees worked as general laborers for the defendant company. They claimed that while working on a fence-removal project, their supervisor threatened to fire them if they “n….r-rigged” the fence. This incident was confirmed by other coworkers and reported thereafter by the employees to a superior. Two weeks later, the two African-American employees were fired without explanation, but were subsequently rehired, only to be fired again, this time because of a “lack of work.”
The African-American employees subsequently filed suit alleging harassment, discrimination, and retaliation in violation of § 1981. The trial court dismissed the employees’ harassment claim because it determined that the facts as pled in the plaintiffs’ complaint did not support a finding that the harassment was “pervasive and regular.” This ruling was not at all surprising because ordinarily in order to prove a hostile work environment under current law, more than a single incident is required to give rise to a potential legal claim. That is how most courts, including in this judicial circuit, have read the requirement of “severe and pervasive.”
An appeal was subsequently taken to the Third Circuit Court of Appeals. The Court determined that it was error for the complaint to have been dismissed. Clarifying its past decisions in this area, the Court held that, in some circumstances, a single incident can be severe enough to contaminate a workplace environment in violation of the requirements of § 1981. In order for a single incident to serve as grounds for a claim of hostile work environment under this law, the Third Circuit explained that the incident must be so “extreme to amount to a change in the terms and conditions of employment.” Thus, not every incident will be enough to meet this new standard, though the decision unfortunately does not provide much clarity at all as to what such circumstances must be to ultimately meet this standard.
The instant decision certainly creates a precarious situation for employers. While ultimate success in each case of this kind will often depend heavily upon the facts giving rise to the case, this decision certainly provides a strong incentive for employers to continue to implement strong anti-harassment policies and training so that everyone understands that zero tolerance of any racially intolerant or similar inappropriate comments is the rule in your workplace. Otherwise, you could learn the hard way as the employer in this case did that there are certain pernicious comments that should never be uttered in any workplace.0