On February 20, 2019, the U.S. Court of Appeals for the Seventh Circuit reversed the district court’s grant of summary judgment in favor of an employer in a Title VII racial harassment lawsuit, in which the employee’s immediate supervisor made racial epithets directly to the employee. Gates v. Board of Education Of The City of Chicago, No. 17-3143 (7th Cir. Feb. 20, 2019). The plaintiff’s supervisor used the N-word twice and threatened to write up his “black ass.” The district court applied the wrong legal standard for hostile work environment claims, erroneously stating that “the workplace that is actionable is one that is hellish.” However, “[h]ellish is not the standard a plaintiff must satisfy to prevail on a hostile work environment claim.”
The district court decided that the supervisor’s comments were not severe or pervasive enough to rise to the level of a hostile work environment. The district court erred in two respects. The court applied the wrong legal standard (indeed, the U.S Supreme Court has stated that “Title VII comes into play before the harassing conduct leads to a nervous breakdown”); and it failed to appreciate the legal distinctions between co-worker and supervisor harassment or direct and indirect harassment. To prevail on a Title VII claim, a plaintiff must show that: (1) she is a member of a protected class; (2) she has been subjected to adverse employment action (or a hostile work environment); and (3) that the employer took the adverse employment action (or the hostile work environment was) on the basis of the plaintiff’s membership in the protected class. Subjecting an employee to a hostile work environment constitutes adverse job action. To establish a hostile work environment claim, a plaintiff must show that: (1) she was subjected to unwelcome harassment; (2) the harassment was based on a protected category; (3) the harassment was severe or pervasive enough to alter the conditions of employment; and (4) there is a basis for employer liability. Relevant factors, to be considered together in their totality, include the severity and frequency of the harassment, whether the harassment was physically threatening or humiliating, and whether it unreasonably interfered with the employee’s work performance. The evidence must be enough for a jury to conclude that the harassment was severe or pervasive enough to constitute a hostile work environment.
The issue in this case was whether the harassment was sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment. A supervisor’s use of racially toxic language in the workplace is much more severe than a co-worker’s, particularly when a supervisor addresses the derogatory and humiliating remarks directly to the employee. Racial epithets made directly to employees by their supervisors are sufficiently severe to preclude summary judgment on a hostile work environment claim. The plaintiff’s supervisor used racial epithets, including the N-word, directly and in reference to the plaintiff. Although the supervisor’s conduct was relatively infrequent and not physically threatening, it was severe and humiliating. A jury could also find that the supervisor’s conduct interfered with the plaintiff’s work performance, because it led him to take a leave of absence from work to seek medical treatment. Supervisory conduct as severe and direct as described in the plaintiff’s testimony “cannot be deemed insufficiently severe or pervasive as a matter of law.”