There is a definite disconnect between the perception of sexual harassment law and what the current state of the law actually is. Many believe that overtly racist or sexist workplace comments easily support Title VII harassment claims. Owing to a number of Supreme Court decisions narrowing the law considerably, that belief is rarely accurate.
A recent case out of Ithaca, New York illustrates this principle. Mark Hassan, of Middle Eastern descent, was a firefighter in the Ithaca Fire Department. When he was terminated, he filed a federal court lawsuit claiming his termination was the product of race discrimination and a hostile work environment. As evidence, he cited a number of workplace statements made by supervisors and fellow employees.
Hassan testified that he had heard the word “nigger” used at unspecified times by unidentified individuals, and had heard firefighter Tom Deis called a “sand nigger” and “wetback.” Deis occasionally referred to himself as a “wetback.” Several firefighters testified that when firefighter Brian Weinstein, who is Jewish, would enter a room, everyone would yell, “Oven,” a reference to the Nazi concentration camps. Weinstein apparently made a joke in response, and also called himself “the token Jew” and made references to “my people.” Hassan related that one day he was asking other co-workers to suggest unique names for a drag car he was building, and Lt. Trask said, in response to a question from Plaintiff, “What, Mark, dune coon?”
Hassan focused much of his attention on an assistant chief’s comments. Sometime after the September 11, 2001, terrorist attacks, while a group of firefighters was watching a documentary about American troops in Afghanistan, the assistant chief looked straight at Hassan and called him a “fucking sand nigger.” In February 2010, the assistant chief “became upset at a television broadcast on Afghanistan, turned to Hassan and stated, ‘You fuckin’ towel heads’ and left the room shaking his head.”
The Court found that Hassan “has identified no more than a few isolated incidents of ethnic or racial enmity or sporadic racial slurs, over a 14-year period. These do not rise to the level of objective offensiveness to create an actionable hostile work environment. Whether the Assistant Chief used the term ‘sand nigger’ or ‘towel head’ on the occasion in question, it is a classic stray remark and insufficient to defeat summary judgment. Although the assistant chief was in a supervisory position over Hassan, he did not at any point have the authority to institute disciplinary actions against Hassan.
“An objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. In light of Hassan’s admitted failure to complain at any time about an allegedly hostile work environment, the Court finds that Hassan has failed to raise a genuine issue of material fact on the subjective component of a hostile work environment claim.”
Hassan v. City of Ithaca, New York, 2015 WL 5943492 (W.D. N.Y. 2015).