On July 2, 2018, the 7th Circuit reversed an order of summary judgment on a hostile work environment claim in an lawsuit that involved multiple claims of race-based discrimination, harassment and retaliation. Robinson, et al. v. Perales, et al., Nos. 16-2291 & 16-3390 (7th Cir. 7/2/2018). To succeed on a claim for discrimination based on a hostile work environment, a plaintiff must demonstrate that: (1) she was subjected to unwelcome harassment; (2) the harassment was based on a protected category; (3) the harassment was severe or pervasive to a degree that altered the conditions of employment and created a hostile or abusive work environment; and (4) there is a basis for employer liability. In determining whether the conduct is severe or pervasive enough to alter the conditions of employment, courts consider the severity of the alleged conduct, its frequency, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee’s work performance.
The 7th Circuit disagreed with the district court’s conclusion that a few instances of the use of the n…word racial epithet were not significant enough to meet the standard for a hostile work environment. Whether harassment was so severe or pervasive as to constitute a hostile work environment is generally a question of fact for the jury. If a reasonable jury could find that the conduct was severe or pervasive, then the claim must go to trial. A supervisor’s multiple use of the n…word in combination with his heightened scrutiny of the plaintiff and his call to others to take action against him are sufficient to create triable issues of fact for a jury on whether the harassment was severe or pervasive enough to constitute a hostile work environment. The 7th Circuit stated that the district court misstated the applicable legal standard by declaring that the conduct at issue must be severe and pervasive, when the requirement is that the conduct be severe or pervasive. The standard may be met by a single extremely egregious act of harassment or by a series of less severe acts. The 7th Circuit also noted that in light of its threatening use throughout American history, this particular racial epithet can have a highly disturbing impact on the listener. Additionally, the alleged harasser was not merely a co-worker; he was a supervisor with direct authority over the plaintiff. No single act can more quickly alter the conditions of employment and crate an abusive working environment than the use of an unambiguously racial epithet such the n…word by a supervisor in the presence of his subordinates. The 7th Circuit also noted that the district court did not consider the totality of the supervisor’s conduct in considering whether his actions meet the standard for a hostile work environment.
The 7th Circuit also reversed the district court on the issue of an unlawful retaliation claim made by the other plaintiff in this case, who claimed that he was retaliated against for refusing to retaliate against another employee. To establish a claim for retaliation, a plaintiff must demonstrate that: (1) she engaged in statutorily protected activity; (2) her employer took a materially adverse job action against her; and (3) the protected activity and the adverse employment action are causally connected. To prove causation, the plaintiff must show that the desire to retaliate was the but-for cause of the challenged employment action. This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful actions of the employer. A materially adverse employment action is one which might have dissuaded a reasonable employee from engaging in protected activity, such as making or supporting a charge of discrimination. The harm is evaluated on an objective standard, but the individualized context of the employee is a factor to be considered. “An act that is immaterial in some situations might be material in others.” The plaintiff engaged in protected activity by opposing an unlawful employment practice under Title VII when he refused to retaliate against a subordinate who filed a good-faith complaint of discrimination. Supporting a colleague’s charge of discrimination by refusing to retaliate against that colleague is protected activity. The false notices of infraction and demotion, with pay cut, qualified as materially adverse employment action. The close proximity in time between the protected activity and acts of retaliation, along with the evidence of pretext, were sufficient to raise triable issues of fact on causation.