Court Won’t Overturn Jury Verdict for Employer in Racial Harassment Case

Takeaway: Although an employee was subjected to harassing conduct because of his race, the harassment was deemed not severe or pervasive by a jury. Therefore, a jury verdict in favor of the employer would not be reversed on appeal.

Although a jury found that an employee had been subjected to harassing conduct because of his race, it found that the harassment was not severe or pervasive. A California appeals court declined to disturb the jury verdict, noting that a plaintiff who loses a jury trial and appeals the judgment due to insufficient evidence “faces an extremely high burden on appeal” and stating that the employee had not met that burden.

In November 2015, the employer, a warehouse store, hired the employee as a meat cutter. At the meat department where he worked, all the employees were men. One employee described it as a “relaxed environment” with people “joking around” and talking about current news, sports and movies. Another employee said the department had “a fraternity kind of vibe, locker room kind of vibe,” where lots of jokes were made at the expense of everybody who worked there.

The employee, the only Black person in the department, was subjected to jokes about his race. He worked there until June 2018, when he was fired for violating a company policy prohibiting employees from eating company food they didn’t buy.

The next year, the employee filed a complaint against the company, asserting racial harassment in violation of the California Fair Employment and Housing Act, among other claims.  

At trial, the employee testified that within his first few months on the job, his supervisor began harassing him by making race-based comments, and the harassment “just progressively got worse” over time. He asserted that his supervisor and others called him “Black Panther,” in reference to the Marvel movie of the same name. According to some other employees, the employee would often call himself Black Panther or Gato Negro (Spanish for Black Panther), he would ask others to call him Black Panther, he did so in a joking manner, and it didn’t seem like it bothered him.

The employee testified that his supervisor told him to “go back to Wakanda,” the fictional African country depicted in “Black Panther.” Other co-workers testified that the employee said he was from Wakanda and wanted to go back.

There was also evidence that the employee would often smile and give the Black Panther greeting—saying “Wakanda forever” while crossing his arms over his chest—to people in the department. One employee remarked that the employee “was laughing and joking” and that “it didn’t seem like it bothered him.”

The employee testified that when he came to work late, his supervisor said something to the effect of, “ ‘Hey, you should have taken the Underground Railroad to get to work on time.’ ” When asked if the supervisor made the comment once or twice, the employee said it happened “often,” but he could not “put a number on it.”

Based on these events, the employee sued, seeking emotional distress damages. He testified that the supervisor’s racial comments hurt and left an emotional scar, he had difficulty trusting people, and it was hard for him to sleep.

The jury rendered a verdict for the employer, finding that while the employee was subjected to harassing conduct because he was Black, the harassment was neither severe nor pervasive. The employee appealed.

A plaintiff who loses a jury trial and appeals the judgment due to insufficient evidence faces an extremely high burden on appeal, the appellate court first noted. For the plaintiff to prevail on appeal, the court must conclude that the plaintiff’s evidence was “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.”

The court then noted that the uncontradicted evidence of the supervisor’s potentially harassing conduct comprised:

• His use of the nickname Black Panther when referring to the employee.
• His references to Wakanda.
• His comment that the employee should have taken the Underground Railroad.

Actionable harassment occurs, the court said, when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

The determination is ordinarily a factual one, the court noted. All harassment claims require severe or pervasive conduct. The words “severe” and “pervasive” have no peculiar meanings under the law. The adjective “severe” is defined as “strongly critical and condemnatory” or “inflicting pain or distress.” The verb “pervade” is defined as “to become diffused throughout every part of.”

The working environment must be both objectively and subjectively hostile, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so, the court explained.

Considering the totality of circumstances, the court said it could not conclude that the evidence was of such a character and weight as to compel a finding that the employee was subjected to severe or pervasive harassment. Although his supervisor called the employee Black Panther and greeted him by saying, “Wakanda forever,” there was ample evidence the employee acted similarly and in jest. As for the Underground Railroad comment, the court said, although the remark was entirely inappropriate, it was unclear how often the remark was made. Based on this evidence, the court could not say that the jury was required to find the harassing conduct severe or pervasive.

Jones v. Costco Wholesale Corp., Calif. Ct. App., No. G061563 (Feb. 27, 2024).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.