Pattern Of Racist Comments Can Be Basis For Harassment Claim

In recent years, it has become increasingly difficult for employees to win claims of harassment based upon the racist or sexist statements of fellow employees or supervisors. Courts have routinely ruled that one statement, even if completely offensive, cannot be the basis for a lawsuit, and even that multiple statements over a period of time cannot provide the necessary foundation for a harassment claim.

A lawsuit brought by five African-American officers who worked in the maximum security Nebraska State Penitentiary shows that if improper comments are pervasive enough, they can still support an harassment claim. However, the dismissal of most of the claims brought by the officers shows how difficult it is today for an employee to win a harassment lawsuit.

The officers alleged that as soon as they entered the prison to begin their workday, they faced humiliating and aggressive treatment by drug dog handlers stationed at the entrance. The dogs were used to ensure that contraband was not smuggled into the prison, but the officers testified that the handlers would aggressively press the dogs onto them while white officers were allowed to proceed into the hallway unmolested. Then in the hallway on the way to roll call, the black officers were regularly subjected to offensive statements referring to them as “the gang,” the “home boys,” or “the back of the bus.”

The morning roll call at the penitentiary was a point at which much of the harassing conduct occurred. The officers alleged that they were subjected to an ongoing stream of racial jokes and remarks by members of the shift. There were frequent race-based comments like “it smells like fried chicken” or the black officers must be happy with watermelon on the menu.” The officers also heard statements like “It’s dark in the corner” if any of them happened to gather at one end of the cafeteria, and remarks like “If the lights went out all you would see is white teeth.”

There was evidence that five supervisors were present and often laughing, smirking, or chuckling at the racial taunts. Several white members of the first shift testified in their depositions that supervisors not only laughed at the racially derogatory remarks made in their presence, but took no cautionary or disciplinary action against the speakers. One sergeant commented about an officer’s hair style, remarking that “this ain’t no hair show” and “this isn’t the hood.” A lieutenant referred to the black officers as the “back of the bus” and “the hood,” another lieutenant referred to Corporal Zeiger, an African-American, as “Corporal Zigger,” and a sergeant used the word “nigger.”

When the officers complained, the air changed dramatically after the supervisors learned about the official investigation. The black officers reported that they were then shunned by supervisors and other officers, who either glared at them when they entered a room or refused to acknowledge their presence. Some of the white officers on the first shift later testified that the supervisors ran a “good old boys” system, doling out preferential treatment to officers they liked and punishing those they disfavored. The officers began to receive “negative citations,” an early disciplinary step, and were given inferior work assignments. Relying on such reports, the supervisors contended that the black officers were “lazy” and avoided arduous work.

Eventually, the officers filed a racial harassment lawsuit. A federal court of appeals found in their favor, holding that the pattern of comments could support a racial harassment lawsuit.

The Court found that “in deciding whether there was an objectively hostile work environment, the evidence must be examined as a whole. A hostile work environment is shaped by the accumulation of abusive conduct, and the resulting harm cannot be measured by carving it into a series of discrete incidents. Specific examples cited as discriminatory and alleged to be part of a pattern of hostile treatment are to be viewed as examples of the offensive racial incidents experienced by the black officers, not as an exhaustive litany of every offensive racial slur or incident which occurred.

“In evaluating all the circumstances which establish whether a work environment is objectively hostile, the context in which abusive remarks are made and by whom can increase their severity and the detrimental impact on other employees. Immediate supervisors’ racial harassment is likely to impact the work environment far more severely than similar conduct by coequals. Laughing or smirking at racist jokes, as well as failing to report, investigate, or punish known racist remarks of others, can make up an accumulation of abusive conduct which poisons the work environment.

“A narrow focus on individual acts at the penitentiary cannot adequately capture the nature of the harassment testified to by the black officers in this case. Many of the situations giving rise to the harassment claims were jointly experienced by these officers. Even if the effect of an individual harassing comment might seem relatively minor when viewed in isolation, the context in which such remarks arose must be considered. Here, the officers were referred to as a gang or the back of the bus and addressed with crude comments about the hood or fried chicken and watermelon, generally stereotyping them on the basis of race. The individual remarks cited in the black officers’ complaint and revealed in the discovery process were not uttered in a vacuum, but became understood as part of a broader pattern and practice of racial harassment targeted at the first shift’s black officers.

“The record contains evidence offered both by the black officers and by other witnesses indicating that racist comments were made without objection in a group setting on a near daily basis. Here, one sergeant was the supervisor most frequently heard making racially charged statements. There was testimony that the harassment of coworkers at the roll call worsened when he was present. The evidence shows that because of the officers’ race, the sergeant engaged in purposeful discrimination by his own comments, as well as by his failure to act to correct the actions of subordinates. After studying the record, we conclude that the evidence reveals acts, comments, and inaction by the sergeant sufficient to make out prima facie harassment claims against him, which must be reinstated and remanded.”

However, the Court was unwilling to go any farther, and dismissed the claims against the remaining supervisors. The Court concluded that “in contrast to the claims against the sergeant, there is insufficient evidence of harassment by the other supervisors and therefore the claims against the lieutenants and remaining sergeant must be dismissed.”

Ellis v. Houston, 742 F.3d 307 (8th Cir. 2014).