Eleventh Circuit Rehabilitates Racial Harassment Claim

By Lehr Middlebrooks Vreeland & Thompson, P.C.

September 27, 2018

To state a claim for harassment or hostile work environment, a claimant must establish, among other things, that he or she was subjected to conduct that was (1) unwelcome, (2) related to his or her protected status (e.g.,  race, sex, religion, etc.), and (3) severe or pervasive. It is often on this last element—severity and pervasiveness—that employers prevail as courts have a long-standing commitment not to turn Title VII and similar laws into a statutory civility code. When examining whether offensive conduct was truly severe or pervasive, courts look to its frequency, whether it involved physical conduct or threatening conduct, whether it had the purpose or effect of humiliation, and whether it interfered with the claimant’s work, among other factors. In general, mere verbal insults will fail to tip the scales unless they occur with a weekly or greater frequency. However, certain highly derogatory language, like the n-word, is treated more like a physical assault or threat, and, if directed at the complaining employee, need only occur once or twice to meet the standard of severity and pervasiveness. Such was the case in the Eleventh Circuit Court of Appeals’ September 24, 2018, decision in Smelter v. Southern Home Care Services, Inc.

Brenda Smelter worked as a Customer Service Supervisor for Southern Home, a home health care agency. As a Customer Service Supervisor, one of her core responsibilities was ensuring that caregivers received accurate schedules and coordinating caregivers’ time entries into a telephone-based timekeeping system with Southern Home’s computer system. She was the only African-American at Southern Home’s Perry, Georgia, office.

According to Smelter, her co-workers regularly engaged in racist dialogue and remarks in her few months of working there. A fellow Customer Service Supervisor, Smallwood, remarked that black men were “lazy” and “the scum of the earth;” and further that “black women had babies on welfare.” The co-worker also compared Smelter’s and President Obama’s appearances to monkeys. An office manager also made remarks like commenting that when she saw black people exiting a bus at Wal-Mart, it looked like they were “chained together.” The office manager went on to say she wished she could “send them all back ... to Africa.”

According to Smelter, one day, a caregiver accused Smelter of not relaying a scheduling change to her. Smelter, who believed Smallwood had overheard her make the scheduling change, asked Smallwood to confirm that she had communicated the scheduling change. Smallwood stated she did not remember it. Smallwood and Smelter got in a heated argument culminating in Smallwood pounding her hands on her desk and telling Smelter to “get out of my office... you dumb black n*****.”

Southern Home argued to the Court that the single use of the n-word was not so egregious, along with the other remarks in a two-month period, to be severe or pervasive. The Court responded, “We strongly disagree. This Court has observed that the use  of  this word is particularly egregious when directed toward a person in an offensive and  humiliating  matter...What is more, Smallwood’s use of this word was not an isolated instance—it came at the end of two months during which Smelter had endured  racist comments on a daily basis.”

This is not the first decision from the Eleventh Circuit or other appellate courts which strongly condemns any tolerance of this most-egregious racial slur in the workplace. However, the fact that this case is yet another case in a trendline of racial harassment cases stretching back to at least 2012 speaks to a continuing need for employers to educate against and to respond aggressively to racial stereotyping, racial insults, racially-charged symbols (examples from this line of cases include nooses, confederate flags where there is other evidence of racism, and banana peels or monkey imagery targeted to African American workers), and racial slurs.