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How Many Insults Does It Take To Prove a Racially Hostile Work Environment?


How many times do you have to be racially insulted to claim that you are in a hostile work environment? More than once, it would appear.

James Nichols was hired by Michigan City in 2011 as a temporary, substitute janitor at two local elementary schools. In just over two weeks on the job, Nichols alleged that various instances occurred with racial undertones, including one instance in which co-worker Bette Johnston was walking with her assistant, and as they walked by, she said to him, "You're a black n-----."

After the two were involved in a fight which got physical, the school principal held a meeting with Nichols' supervisors at the Michigan City Plant Planning Department — which oversaw maintenance at all Michigan City schools — to discuss his behavior.

Eventually, after accusations that Nichols tried to take photos of Johnston to "catch her in the act of mistreating him," Nichols was confronted by his supervisors who noted that he was "agitated, spoke very quickly and was sweating profusely."

Nichols was removed by his supervisors from his position as a result of the meeting and his erratic behavior on the day he was let go, according to court documents.He sued, claiming a racially hostile work environment existed. His case was thrown out by a lower court.

On appeal, he lost again. According to the court "Nichols claims that Johnston's alleged 'black n----r' comment constitutes severe harassment. We have stated that while there is no 'magic number of slurs' that indicates a hostile work environment, an 'unambiguously racial epithet falls on the 'more severe' end of the spectrum. However, while referring to colleagues with such disrespectful language is deplorable and has no place in the workforce, one utterance of the n-word has not generally been held to be severe enough to rise to the level of establishing liability".

The court said that five other incidents of discrimination and harassment reported in Nichols' lawsuit could not be proven to be directed at him and did not interfere with his job performance. Additionally, it noted that Nichols' supervisors had stated in sworn affidavits that regardless of what happened between Johnston and Nichols, the janitor's position was going to be filled with a permanent employee the following week.

This case serves as another example that a court, in order to find a racially hostile work environment, must see evidence that the environment was both subjectively and objectively hostile (i.e. that not only racially hostile act took place, but also that the plaintiff perceive them as directed specifically at him ), and that the conduct be severe and pervasive. People make racially insensitive remarks all the time, sometimes in a joking manner. It is only when one perceives them as being serious and pervasive that a claim for a racially hostile work environment might succeed.

Courts do differ on how a law is interpreted, and expert help is needed in order to determine whether you have a valid claim for racial discrimination in the workplace. If you have been the victim of racial harassment in the workplace, call the attorneys at Schwartz & Perry LLP for advice.
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