Can Seemingly Race-Neutral Conduct Support A Claim Of Racial Harassment?

Is it racial harassment to threaten to drag an African American employee behind a truck? Can calling an African American employee a “dumba**” in a company meeting support a claim of racial harassment?

On a superficial level, it may be assumed there is nothing facially racist about such conduct. There is no overt reference to race or any racist slur typical of most racial harassment claims. Federal courts indeed have held that race-neutral conduct, without more, does not support a claim of racial harassment under Title VII of the Civil Rights Act of 1964 (“Title VII”). See Burlington Northern & Sant Fe Ry, Co. v. White, 548 U.S. 53 (2006)(“Title VII, we have said, does not set forth ‘a general civility code for the American workplace’”). 

Nevertheless, the U.S. Supreme Court has stressed that, in evaluating a harassment claim, a court must consider the totality of the relevant circumstances. See Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). A court must give careful consideration to “the social context in which particular behavior occurs and is experienced by its target.” See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998).

Even as to race-neutral conduct, therefore, additional questions must be answered by a court in determining the viability of a racial harassment claim.

Is the Conduct Truly Race-Neutral?

As fully discussed in the post on this blog titled “Dog Whistle Racism in the Workplace“, federal courts now recognize that some seemingly race-neutral terms are actually racist code words. As the U.S. Supreme stated in Ash v. Tyson Foods, 546 U.S. 454 (2006):

“Although it is true [a] disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.”

In Henderson v. Irving Materials, Inc., 329 F.Supp.2d 1002 (S.D.Ind. 2004) the court was presented with the first question asked in this post – Is it racial harassment to threaten to drag an African American employee behind a truck? In answering this question in the affirmative, the court referenced the historical context behind the threat:

“Defendants’ contention that a threat to drag [the African American employee] behind a pick-up truck was devoid of a racial element is blind to history … In a murder that gained worldwide attention in 1998, James Byrd, a black man, was chained to the back of a pick-up truck by three white men who drove through the streets of Jasper, Texas, dragging Byrd to his death … The murder of Mr. Byrd triggered images of similar past acts of lynching, a tactic used by whites to terrorize and kill members of the black community.

The threat by [a white employee] a self-proclaimed member of the Ku Klux Klan, that he “would like” to drag [the African American employee] down the street on the back of [his] pick-up truck has racial connotations that date back to the days when lynching black people in this manner was commonplace … A jury could easily find that [the] threat carried as much racist freight as the most vile racial epithets.”

For this and other reasons, the court denied the employer’s motion for summary judgment as to the African American employee’s claim of racial harassment under Title VII.

Has The Same Actor Engaged in Overtly Racist Conduct?

Federal courts have also held that a plaintiff may rely upon facially neutral conduct to bolster a harassment claim when the same individual engaged in multiple acts of harassment, some overtly racist and some not. See Daniel v. T&M Protection Resources, LLC, 689 Fed.Appx. 1 (2nd Cir. 2017). These courts have emphasized that, in evaluating a racial harassment claim, they must keep in mind that “the real social impact of workplace behavior often depends on a constellation of surrounding circumstances and relationships.” See Ocanle, supra.

In Okoli v. Michelin North America, Inc.- BF Goodrich, 2020 WL 5709155 (N.D.Ind. Sept. 24, 2020), the court was presented with the second question asked in this post – Can calling an African American employee a “dumba**” in a company meeting support a claim of racial harassment? In answering the question in the affirmative, the court looked at the “surrounding circumstances and relationships”:

“… in the abstract, calling someone a ‘dumba**’ is not inherently racial … However, when the same person using the insult has also mocked someone’s accent and immigration status, the calculus changes … [The] insults directed toward [the African American employee’s] intelligence are not, in and of themselves, racially tinged. But when one remembers that the same individual called [the African American employee] a ‘f***ing foreigner’ and made monkey noises in his direction, the characteristics of [the] statements necessarily change. Considering the explicit racist character of several incidents, a reasonable jury could conclude that the superficially neutral incidents were also based on race.”

For this and other reasons, the court denied the employer’s motion for summary judgment as to the African American employee’s claim of racial harassment under Title VII.

The Challenge for Employers

That seemingly racially neutral conduct can, under certain circumstances, support a claim of racial harassment presents a tremendous challenge for employers. How can an employer fight conduct which it does not necessarily know is racist?

One step in meeting this challenge is the recognition that myopic policies and training may not be adequate in combating harassment. Such policies and training may allow seemingly race-neutral conduct to go unpunished. Broader policies and training which address all forms of abuse and bullying allow an employer to discipline employees who engage in inappropriate conduct regardless of its motivation. Calling an employee a “dumba**” in a company meeting, or threatening an employee with physical harm, should never be permissible conduct under any circumstances.

Another step in meeting this challenge is close monitoring of employees known to have engaged in racist conduct in the past. More important than the nature of subsequent conduct engaged in by such employees is the motivation behind such conduct. What may be innocuous conduct by other employees, may not be innocuous for an employee with a history or racist behavior.

Finally, employers must be receptive to complaints by employees as to conduct which is not inherently racist. They must learn to ask why seemingly race neutral conduct is offensive. As many employers have already learned the hard way in litigation, quick judgments based upon antiquated presumptions can be a costly mistake.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com

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