The United States Court of Appeals for the Second Circuit held last week that a single racial slur might provide sufficient basis for a hostile work environment claim. In the case, Daniel v. T&M Protection Resources, LLC, Plaintiff Daniel, a black, gay man from the Caribbean, alleged he was harassed at work on the basis of his race, national origin, and sexual orientation in violation of Title VII of the Civil Rights Act of 1964 (Title VII). Among other race-based statements, Daniel alleged his supervisor yelled “you f–ing n—r” at Daniel on a single occasion. The District Court disregarded this comment, holding that, according to the Second Circuit’s precedent in Schwapp v. Town of Avon, this single racial slur cannot, as a matter of law, by itself sustain a Title VII hostile work environment claim. In a decision vacating the District Court’s order granting summary judgment to Defendant T&M, the Second Circuit disagreed that Schwapp held that as a matter of law a single racial slur can never support a hostile work environment claim. The Second Circuit did not, however, rule on the sufficiency of Daniels’ claim based on this comment, and further “declin[ed] to confront the issue of whether the one-time use of the slur “n–r” by a supervisor to a subordinate can, by itself, support a claim for a hostile work environment,” holding merely that Schwapp “does not foreclose this possibility.”
The Second Circuit also held that the District Court incorrectly disregarded facially neutral harassing conduct toward Daniel that was not overtly based on a protected characteristic, and that such conduct by the same person alleged to be engaged in harassment based on protected characteristics can strengthen a Title VII hostile work environment claim.
Finally, with regard to Daniels’ sex discrimination claims, the Second Circuit reaffirmed its position, stated recently in Christiansen v. Omnicom, about which we reported to you here, that Title VII does not prohibit sexual orientation discrimination, but that it does prohibit discrimination based on gender stereotyping. The Second Circuit panel further found that the District Court correctly construed Daniels’ claim that his supervisor told him to “man up,” “be a man,” and called him a “homo” as harassment based on Daniels’ failure to comply with gender norms. Notably, Plaintiff Matt Christiansen of the Omnicom decision, petitioned the Second Circuit last Friday, asking it to revisit its holding that Title VII does not prohibit discrimination on the basis of sexual orientation. No word as to whether the Second Circuit panel will accept this request.