January 15, 2021

When is Enough (not) Enough?

This question has been at the heart of litigation aimed at determining, “Just how much harassment is unlawful?” The EEOC’s website reads, “Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality.”

So, does that include an employee’s single and directed use of the “N” word towards a coworker? It may be isolated but is it a petty slight?  Merely an annoyance? Is it sufficiently “severe or pervasive” to create a hostile work environment under Title VII of the Civil Rights Act of 1964?

On January 15th, the U.S. Supreme Court was petitioned to determine:

  1. “Whether an employee’s exposure to the N-word in the workplace is severe enough to send his Title VII hostile-work-environment claim to a trier of fact.
  2. Whether and in what circumstances racial epithets in the workplace are ‘extremely serious incidents sufficient to create a hostile work environment under Title VII, rather than nonactionable ‘mere utterances.’”

To date, some U.S. Circuit Courts of Appeals have ruled that the answer to the first question is “Yes.” Others have found the answer to be, “No.”

Legally actionable or not, such acts may not demonstrate workplace professionalism, civility or respect. Every situation is different. I propose that this case gives us all an opportunity to pause and conduct a self-assessment.  Sure, look at your policy. More importantly, look at your workplace practices. Do they really hold everyone accountable for practicing civility and respect?  Who defines that and how? Is it situational?

What next? SCOTUS has the right to decline to hear a case (cert. denied).  Stay tuned to hear if the Court will hear this case and give employers and employees some clarification or let this opportunity pass by.

In the meantime, check out a couple of related and upcoming webcasts, where we’ll be sure to discuss any updates on this case: