Victims of employment discrimination often suffer harassment over a period
of years and, as a result, may be unable to recall the specific circumstances
of each act against them. Adding on the fact that discrimination is rarely
done openly, and there is never a "smoking gun," a person alleging
discrimination may feel that fighting discrimination is too uphill a battle to try.
Rivera v. Rochester Genesee Regional Transportation Authority, 702 F.3d 685 (2d Cir. Dec. 2012), the Second Circuit, the federal appellate
court for New York, Vermont and Connecticut, clarified what a plaintiff
must be required to prove in a hostile environment case.
Rivera, the plaintiffs alleged that his supervisor and co-workers repeatedly
made discriminatory comments to him, including calling him "spic"
and saying, "What's that smell . . . there is Taco Bell."
The plaintiffs, however, were unable to recall specifics regarding each
instance and also pointed to other acts of bullying that were not overtly
racial. The lower court had granted the company's motion for summary
judgment, which dismissed the case, saying that harassment the plaintiffs
experienced arose from a "personal conflict" and that the "offensive
language" over a period of years was not enough to permit the claim
to go to a jury.
The appellate court, however, reversed the lower court and permitted the
plaintiffs' claim to proceed to a jury. The court found that witnesses
who stated that the supervisor used racial slurs outside of the plaintiffs'
presence demonstrated that race discrimination could have motivated the
supervisor, and cautioned that "a hostile work environment claim
need not be supported by direct evidence of explicit racial harassment."
The court also found that the although one of the plaintiffs could not
provide all details about his claim, "he provided enough details,"
so that his claim should not have been dismissed. The court also noted
that the plaintiffs did not contradict their prior answers, so that it
was not proper for the lower court to disregard their testimony.
We are pleased to see the court acknowledge, as it has before, that employment
discrimination victims who fight back should not have their claims dismissed
merely based on the court's belief that the plaintiff did not provide