4th Circuit Revives Harassment Claim Based on Child's Racial Slur

​In this case, the 6-year-old grandson of the business owners allegedly used a racial slur to refer to an employee on three occasions. The 4th U.S. Circuit Court of Appeals rigorously reviewed the factual record and considered whether the owners' family could have done more to protect the plaintiff, sending the issue to a jury trial.

The plaintiff worked for Oakland Living Center Inc. (OLC), an assisted living facility in Rutherfordton, N.C. OLC's owners left the management of the business to their son, who served as a supervisor while training to take over the business. The owners and their son were white, and the plaintiff was Black.

The plaintiff began working at OLC in 2004 as a housekeeper, cook and personal care aide. OLC had an employee handbook, but there was only one copy of it at the front desk. During her employment at OLC, the plaintiff claimed that she experienced racial harassment and other discrimination by the owners for 11 years, until she resigned in 2015.

Among other things, she claimed that one of the owners said she would put a "slave number" on the plaintiff's identification badge; an owner's niece made a racist statement; the owners held a birthday party that had racist overtones for their grandsons and the plaintiff; and the plaintiff asked one of the owners to help her get a med tech license but the owner never did, prompting the plaintiff to quit.

In 2018, an OLC employee contacted the plaintiff and persuaded her to return to work at the assisted living facility as a weekend cook. The plaintiff believed the employee who rehired her was her supervisor, although OLC later denied it. According to the plaintiff, the owners' grandsons often spent time in the facility and were always in the kitchen with her.

In July 2018, the plaintiff was preparing cupcakes for the facility's residents and set some aside for the grandsons to decorate. The 6-year-old grandson finished decorating his cupcakes and wanted more. When the plaintiff refused, he allegedly hit and kicked her. He then told her that his father had called her lazy and the "n-word" when she did not come to work, according to the plaintiff. She claimed that she reported this incident to the employee who rehired her.

In August 2018, the same boy was outside doing tricks on his bicycle and wanted the plaintiff to watch him. She did so from the window and then said she had to go back to work. He ran to the window and allegedly called her the "n-word" and told her to get to work. The owners were out of town, but their son—the supervisor—was there, and he was told about the incident.

In response, the supervisor brought the boy into the facility's kitchen to apologize to the plaintiff, and the boy refused. The supervisor left the room, and the boy then allegedly repeated the racial slur. The plaintiff immediately resigned and never returned to OLC.

The plaintiff then filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission, which did not reference her first employment from 2004-2015. She said she did not report the July 2018 incident with the boy to the EEOC but had asked him to stop using the racial slur.

The plaintiff later filed a lawsuit against OLC, claiming a hostile work environment and constructive discharge under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. §1981. OLC filed a motion for summary judgment to dismiss the claims.

The district court granted dismissal for various reasons, including that the 2004-2015 incidents were left out of her charge and that OLC could not be held responsible for the boy's racist statements.

The plaintiff appealed the decision to the 4th Circuit, which found that the plaintiff had stated material facts to be decided at trial. These included whether the plaintiff's report of the July 2018 incident was sufficient to put OLC on notice of the boy's conduct, particularly since the employee handbook was not readily available, and whether OLC took sufficient action to remedy his racist statements. These statements had a more harassing effect coming from a descendant of the owners than if made by a customer or third party. The 4th Circuit further found that the plaintiff could reference the 2004-2015 incidents as background evidence at trial.

The 4th Circuit thus reversed the district court and ordered the case to proceed to trial.

Chapman v. Oakland Living Center Inc., 4th Cir., No. 20-2361 (Aug. 30, 2022).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.