Co-Worker Epithets Are Evidence of Racial Harassment

​A carpenter for a company that employs workers with disabilities could go forward with his claim that a co-worker created a hostile work environment by using Spanish words that disparaged Black employees, the 5th U.S. Circuit Court of Appeals held.

PRIDE Industries Inc. is a nonprofit that employs individuals with disabilities in manufacturing and service jobs. It receives government contracts through a federal program requiring that at least 75 percent of a contractor's labor work hours be performed by individuals with disabilities.

On March 9, 2015, PRIDE hired the plaintiff, who is Black, as a general maintenance worker at Fort Bliss. In May 2016, PRIDE promoted the plaintiff to the position of carpenter. A Hispanic employee who supervised a different section of PRIDE's carpentry shop had frequent interactions with the plaintiff, and the plaintiff accused this section supervisor of racial harassment.

The plaintiff alleged that the section supervisor used racially offensive language and treated non-Hispanic employees worse than Hispanic colleagues.

The section supervisor also allegedly gave the plaintiff less desirable job assignments and hid the paperwork the plaintiff had submitted to be promoted to the carpenter position. The section supervisor also had responsibility for picking up materials needed for jobsites, and the plaintiff often had difficulty finding the materials he needed.

The plaintiff made multiple complaints about the conduct to his supervisor, a vocational rehabilitation counselor and another PRIDE manager. He reported the alleged use of the racially offensive language. The supervisor said he would talk to the section supervisor. The manager said that she too had been harassed by the section supervisor and that the plaintiff had to get tough and keep going. The section supervisor allegedly continued to use the racially offensive language toward the plaintiff.

The plaintiff thereafter loudly confronted the section supervisor, and PRIDE disciplined the plaintiff. The plaintiff then applied and interviewed for a supervisory carpentry position, but the position went to a Hispanic employee with more experience.

The plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in February 2017. In September 2017, PRIDE called the plaintiff into a meeting to discuss his attendance problems. The plaintiff said coming to work was too stressful and resigned. In resigning, he cited employment incidents that affected his mental health and co-worker interactions that caused him stress and anxiety.

The plaintiff filed a lawsuit under federal and state employment discrimination laws claiming a hostile work environment, failure to promote, discrimination and constructive discharge. PRIDE moved for summary judgment on all of the claims, which the district court granted.

On appeal, the 5th Circuit considered its prior hostile work environment case law, including a past decision in which it found that a supervisor's single use of racially offensive language did not create a hostile work environment.

The court noted that it might not reach the same conclusion today and found that the plaintiff had evidence of more harassment than just one use of a racial epithet. It reversed the district court's dismissal of the hostile work environment claim and ordered it to proceed to trial. The court upheld the dismissal of the other claims.

Johnson v. PRIDE Industries Inc., 5th Cir., No. 19-50173 (Aug. 6, 2021).

Professional Pointer: Employers must take seriously any employee's complaint of racial epithets in the workplace, regardless of who they are used by or how often. Failure to do so can go far toward establishing a claim of racial harassment.

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