Imagine you are somehow different from your co-workers. Imagine your supervisor assigns you work that is well below your skill level while other, less experienced employees receive complex and interesting tasks. Imagine someone repeatedly writes derogatory comments on a time sheet clearly directed to you. Imagine the penultimate insult occurs when your supervisor brands you with a slur and threatens to fire you in front of a crowd. Two weeks after you report the threat and degradation, the company unceremoniously fires you for “lack of work.”
This scenario may seem implausible but in a recent, high-profile case in the U.S. Court of Appeals for the Third Circuit, appellants Atron Castleberry and John Brown allege these events occurred at Chesapeake Energy Corp. after a staffing agency, STI Group, placed them there as subcontractors. Castleberry and Brown are African-American and fall within a protected class under federal and state nondiscrimination laws. The men claim they experienced a hostile work environment, received disparate treatment because of race, were subjected to policies that disparately impacted them because of race, and suffered retaliation for reporting improper conduct—all in violation of 42 U.S.C. Section 1981, see Castleberry v. STI Group, No. 16-3131, 2017 U.S. App. LEXIS 12611, at *3 (3d Cir. July 14, 2017).
This federal statute provides, in relevant part: “All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts … and to the full and equal benefit of all laws … as is enjoyed by white citizens.” In employment discrimination cases, actions brought under this statute are subject to the same analysis as discrimination claims under Title VII of the Civil Rights Act of 1964, as in Brown v. J. Kaz , 581 F.3d 175, 181-82 (3d Cir. 2009). Although each of the claims at issue in the Castleberry case have different elements as outlined below, generally speaking, the equivalent interpretation of Section 1981 and Title VII means: Castleberry and Brown must show they endured race-related discriminatory conduct and suffered an adverse employment action; Chesapeake and STI must defend the employment decision by showing it was based on legitimate, nondiscriminatory business reasons; and Castleberry and Brown will have an opportunity to rebut Chesapeake and STI’s defense by proving the proffered legitimate, nondiscriminatory business reasons are pretextual, as in McDonnell Douglas v. Green, 411 U.S. 792 (1973), (adopting burden-shifting framework).
At the trial court level, the U.S. District Court for the Middle District of Pennsylvania dismissed Castleberry and Brown’s case in its early stages, finding the plaintiffs had not provided sufficient evidence of their claims to survive a motion to dismiss, see Castleberry v. STI Group, No. 4:15-CV-00153, 2016 U.S. Dist. LEXIS 80831, at *21 (M.D. Pa. June 22, 2016). However, the Third Circuit disagreed as to claims of hostile work environment, disparate treatment and retaliation. In July, it reversed and remanded the case, allowing Castleberry and Brown to proceed with fact-finding discovery and later a trial on the merits.
Headlines in legal news outlets across the county proclaim that the Third Circuit now allows plaintiffs to proceed with employment discrimination claims based on allegations of a “single slur.” As this article will illuminate, such eye-catching headlines overstate the Third Circuit’s ruling and may even mislead practitioners to question the viability of the oft-used “stray remarks” defense.
Prima Facie Elements of Hostile Work Environment
A prima facie case of hostile work environment has several layers. To succeed in proving this type of harassment, a plaintiff first must show “the employee suffered intentional discrimination because of his/her race, the discrimination was severe or pervasive, the discrimination detrimentally affected the plaintiff, the discrimination would detrimentally affect a reasonable person in like circumstances, and the existence of respondeat superior liability meaning the employer is responsible,” as in Mandel v. M&Q Packaging, 706 F.3d 157, 167 (3d Cir. 2013).
In Castleberry, the Third Circuit focused on the second element, reviewed its prior jurisprudence concerning that element, and noted it has inconsistently held discrimination must be “pervasive and regular” or “severe and pervasive.” The Castleberry court clarified that the correct standard is the disjunctive “severe or pervasive,” meaning that an isolated incident may be enough to prove a hostile work environment if the incident is extremely serious. In reaching this conclusion, the Castleberry court relied on longstanding U.S. Supreme Court precedent in Faragher v. City of Boca Raton , 524 U.S. 775, 788 (1998); see also Pennsylvania State Police v. Suders , 542 U.S. 129, 133 (2004); and Harris v. Forklift Systems, 510 U.S. 17, 22 (1993).
Castleberry and Brown allege a supervisor told Castleberry and other workers assigned to a fence-removal project that “if they had ‘[n-word]-rigged’ the fence, they would be fired.” The comment plainly includes a serious and offensive racial slur. Reports on the case would have practitioners and businesspersons alike believe that the Castleberry court’s decision about the survival of the employees’ harassment claim turned on this statement alone—i.e., on this single slur. A close reading of the opinion reveals that the Castleberry court considered the slur in the context of other offensive conduct; for example, Castleberry and Brown also alleged that an anonymous penman wrote “don’t be black on the right of way” on employee sign-in sheets, and that supervisors relegated the men to cleaning around pipelines rather than giving them work appropriate for their skills and experience.
So, while it’s clear that an extremely serious, isolated incident is enough for a plaintiff to meet the second element of a prima facie case of hostile work environment, it’s not quite clear whether an isolated utterance of the “n-word” or other slur is extremely serious under the law in this jurisdiction. Specifically, the Castleberry court highlighted that the “resolution of that question is context-specific.” The Castleberry court also emphasized that the “racially charged slur” was spoken in front of “non-African American co-workers” and “within the same breath” as “threats of termination (which ultimately occurred).” Thus, questions concerning whether the context in which a “single slur” is levied makes the event sufficiently severe to establish a prima facie case of hostile work environment must be resolved after discovery—either with a motion for summary judgment or with arguments at trial.
The Castleberry case likely will change the plaintiffs bar’s approach to employment discrimination and could increase litigation costs for hostile work environment claims. Cases that previously may have been defeated by a motion to dismiss now may proceed through discovery—an increasingly expensive part of litigation in a world of ubiquitous technology. The plaintiffs counsel also may demand more handsome settlements because of the increased price of defending a case.
But What About the ‘Stray Remark’ Defense?
The single slur headlines papering the nation this summer are evocative of a common tactic in employment discrimination cases—the stray remark defense—and such headlines may cause confusion as to whether the Castleberry case affects the availability of that defense. Let’s eliminate the confusion: Courts likely would not construe the supervisor’s use of the “n-word” in Castleberry as a stray remark.
In addition to hostile work environment, another claim at issue in Castleberry is discrimination based on disparate treatment. Two types of disparate treatment cases exist: (pretext; and mixed-motive, as in Connelly v. Lane Construction, 809 F.3d 780 (3d Cir. 2016). In a pretext case, a plaintiff must prove that his or her protected status was a “determinative factor in the adverse employment action.” In a mixed-motive case, a plaintiff must show the “unlawful motive was a substantial motivating factor in the adverse employment action.” When deciding whether alleged discriminatory conduct was a determinative factor or a substantial motivating factor in an adverse employment decision, courts typically disregard stray remarks, as in McCann v. Astrue, 293 F. App’x 848, 851 (3d Cir. 2008). “Stray remarks by nondecision-makers or by decision-makers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote from the date of the decision,” as in Brewer v. Quaker State Oil Refinery , 72 F.3d 326, 333 (3d Cir. 1995); citing Ezold v. Wolf, Block, Schorr & Solis-Cohen , 983 F.2d 509, 545 (3d Cir. 1992).
In Castleberry, the statement now colloquially referred to as the “single slur” is unlikely to be characterized as a stray remark. First, Castleberry and Brown’s supervisor, who presumably would have had a role in disciplining or terminating the men, is the individual who allegedly made the statement. Second, the supervisor intertwined a racially charged slur with a threat of termination. Third, the supervisor made the statement roughly two weeks before Castleberry and Brown were let go. Third Circuit precedent establishes that a comment made two years prior to a plaintiff’s termination was a stray remark because it was too remote in time from the adverse employment action. Chesapeake let Castleberry and Brown go two weeks after they reported the “n-word” incident, briefly re-hired them, and then terminated them again for “lack of work.” For all of these reasons, the “single slur” here likely is not a stray remark for purposes of defending against a disparate impact employment discrimination claim.
Practical Lessons for Your Business
For reasons that go beyond employment litigation matters and the cost of defending or settling such cases, in the current racially charged climate, businesses must take steps to protect against comments made at work that are insensitive at best and damaging at worst. Employers should consider:
- Providing sensitivity training and educational sessions on diversity and inclusion for all personnel, but particularly for managers, supervisors and executives.
- Establishing policies and procedures to investigate complaints of discrimination or harassment promptly and thoroughly.
- Hiring an independent, third-party investigator when appropriate to underscore impartiality, evidence proactivity and improve employee relations.
- Reviewing business decisions to determine whether they result in unintentional discrimination.
- Purchasing employment practices liability insurance (EPLI) to protect against the costs of defending discrimination claims.
Andrew Warren, Law Clerk at Griesing Law, contributed to this article.
Reprinted with permission from the “August 24, 2017” edition of the “The Legal Intelligencer”© 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or email@example.com.