RACIAL HARASSMENT LAWYERS IN MARION

COUNTY, FL SERVING CENTRAL FLORIDA

For almost two decades, our Marion County, Florida race discrimination attorneys have been in the trenches fighting for the rights of employees who have been required to work in a racial hostile environment. Although there has been some erosion in race-based employment barriers since the passage of the federal anti-discrimination laws, racial intolerance and bigotry remain a serious problem in the workplace. As observed by the U.S. Eighth Circuit Court of Appeals in Delph v. Dr. Pepper Bottling Co. of Paragould, Inc., 130 F.3d 349 (8th Cir. 1997), a racial hostile work environment is “an ongoing nightmare for the employee victim.” Based in Ocala, Florida and representing employees throughout Central Florida, including Alachua, Citrus, Columbia, Lake, Marion, and Sumter Counties, our Marion County, Florida race discrimination lawyers are dedicated to vindicating the rights of employees who have endured a racially hostile workplace.

Legal Protection Against Race Discrimination

Title VII of the Civil Rights Act of 1964 (Title VII), which is federal law, and the Florida Civil Rights Act (FCRA), which is Florida law, make it an unlawful employment practice for an employer to discriminate against an employee on the basis of race. Title VII is the lynchpin of the efforts by the federal government to end race discrimination in the workplace. “Title VII,” as determined by the U.S. Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973), “tolerates no racial discrimination, subtle or otherwise.” As observed by the U.S. Supreme Court in Teamsters v. United States, 431 U.S. 324 (1977), the “primary purpose of Title VII was to assure equality of employment opportunities and to eliminate those discriminatory practices which have foster racially stratified job environments to the disadvantage of minority citizens.” Title VII and the FCRA provide broad protection against all forms of race discrimination in private and public employment, including hiring, job training, compensation, job assignments, promotion, discipline, layoff, and termination.

Race Harassment Is A Form Of Race Discrimination

In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the U.S. Supreme Court ruled that Title VII is intended to “strike at the entire spectrum of disparate treatment of men and women in employment,” which includes requiring employees to work in a hostile or abusive work environment. Thus, the Meritor Court explained, “Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult.” In applying Supreme Court precedent, courts have determined that racial harassment which creates a hostile or abusive work environment is a form of race discrimination forbidden by Title VII and the FCRA.

Racially Abusive Work Environment

Under Title VII and the FCRA, an actionable claim for racial harassment exists when the harassment is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile work environment. To create an abusive work environment, the racially discriminatory behavior does not have to be both severe or pervasive; one or the other will do. Race-based abusive conduct is deemed severe when it involves racial slurs, racial epithets, physically abusive behavior, or physically threatening behavior. Race-based abusive conduct is deemed pervasive when it is persistent or continuous. If the harassment was not so severe or pervasive to alter the conditions of the victim’s employment and create a hostile work environment, an employer cannot be held liable for the racially harassing conduct.

Examples Of Racial Harassment At Work

Title VII and the FCRA do not prohibit all verbal and physical harassment in the workplace. Instead, the anti-discrimination laws are directed only at discrimination because of an employee’s protected characteristic, such as race. Generally, in order for abusive conduct to constitute racial harassment, the conduct must be racial in nature or stem from racial animus. Stated another way, racial harassment occurs when the harasser targets the victim for harassment because of the victim’s race. Although it is impossible to fully catalogue the various different kinds of conduct that can create a racial hostile work environment, the type of conduct that occurs because of the victim’s race and constitutes a form of racial harassment includes:

• Use of racial slurs or racial epithets when referring to the victim or other members of the victim’s race.

• Race-based insults towards the victim or other members of the victim’s race.

• Racial jokes about the victim or other members of the victim’s race.

• Use of racial code words or phrases.

• Remarks reflecting animosity or hostility towards members of the victim’s race.

• Racial graffiti in the workplace.

• Display of a noose in the workplace.

• Racial segregation in the workplace, including racially segregating employees and jobs.

• Threatening to replace the victim with a worker of a different race.

• Physically threatening and physically abusive behavior.

• Requiring the victim to do the most dangerous or unpleasant job duties.

• Treating the victim less favorably from employees of a different race.

• Any other conduct, whether verbal or physical, that targets the victim for abuse because of his or her race.

Single Racial Slur Can Create Hostile Environment

To constitute actionable racial harassment, the offending behavior must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. When evaluating a racial hostile work environment harassment claim, as the U.S. Third Circuit Court of Appeals in Miller v. Thomas Jefferson Univ. Hosp., 565 Fed.Appx. 88 (3d Cir. 2014) explained, courts consider the “totality of the circumstances, including the frequency of the discriminatory conduct; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Thus, in determining whether racial harassment is sufficiently severe or pervasive to create a hostile work environment, the overall scenario must be considered.

Because harassment does not have to be both severe and pervasive to create a racial hostile work environment, courts have determined that a single isolated incident of harassment, if sufficiently severe, can create a hostile work environment. In the racial harassment context, courts have found that the use of a racial slur on a single occasion or a single incident of racial harassment can create a racial hostile work environment.

For example, in Ayissi-Etoh v. Fannie Mac, 712 F.3d 572 (D.C. Cir. 2013), the U.S. Court of Appeals for the District of Columbia determined that a supervisor’s single use of a racial slur “might well have been sufficient to establish a hostile work environment.” Similarly, in Adams v. Austal U.S.A., LLC, 754 F.3d 1240 (11th Cir. 2014), the U.S. Eleventh Circuit Court of Appeals found that although a racially offensive carving on a workplace wall “was an isolated act, it was severe” enough that a “reasonable jury could find that [the victim’s] work environment was objectively hostile.”

Racial Harassers Usually Claim They Were Joking

Racial harassers typically defend themselves by claiming that their behavior was not racially offensive because they were “just joking.” Seizing on the harasser’s disingenuous “just joking” defense, employers then often argue that the victim was not harassed based on race because the harasser did not intend to be racially offensive. However, as explained by the U.S. District Court for the Southern District of New York in Boggs v. Die Fliedermaus, LLP, 286 F.Supp.2d 291 (S.D. N.Y. 2003), “racially offensive remarks are not excused if they are made in a joking manner.” Thus, the issue of the harasser’s intent is legally irrelevant as to whether the victim was harassed on the basis of race. Instead, the legally controlling issue is whether the victim regarded the conduct as a joke or as unwanted racial harassment. If the victim regarded the conduct as racially offensive harassment, then the conduct constitutes harassment because of the victim’s race.

Hostile Environment Not Limited To Race-Based Conduct

Because the most important factor with respect to a hostile work environment harassment claim is the nature of the victim’s work environment, courts have recognized that a broad range of conduct can contribute to the creation of a hostile work environment. In evaluating a racial hostile work environment harassment claim, courts have determined that employees may rely on race-neutral conduct to bolster a racial harassment claim when the harasser engaged in multiple incidents of harassment, some explicitly based on race and some not. Indeed, as observed by the U.S. Eighth Circuit Court of Appeals in Diaz v. Swift-Eckrich, Inc., 318 F.3d 796 (8th Cir. 2003), “all instances of harassment need not be stamped with signs of overt discrimination if they are part of a course of conduct tied to evidence of discriminatory animus.” Thus, acts of racial harassment do not have to include racial overtones in every instance in order to contribute to a racial hostile work environment.

As explained by the U.S. Tenth Circuit Court of Appeals in Chavez v. New Mexico, 397 F.3d 826 (10th Cir. 2005), “conduct that appears [race]-neutral in isolation may, in fact, be [race]-based, but may appear so only when viewed in the context of other [race]-based behavior.” When a harasser was involved both in explicitly racial incidents as well as incidents that were facially neutral, this fact supports the conclusion that the allegedly race-neutral occurrences were, in fact, racially motivated and part of a pattern of racial harassment. Indeed, when viewed in the context of other explicitly race-based conduct, race-neutral incidents of harassment, such as denial of assistance, unequal treatment, yelling, insults, and physical threats, are also based on the victim’s race and contribute to a racial hostile work environment. So long as there is some evidence of explicitly race-based incidents of harassment, race-neutral incidents of harassment are included among the totality of circumstances that courts consider in evaluating a racial hostile work environment harassment claim.

Harassment Of Others Shows A Hostile Environment

“Whether an environment is hostile or abusive,” as explained by the U.S. Supreme Court in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), “can be determined only by looking at all the circumstances.” Indeed, as the U.S. Sixth Circuit Court of Appeals observed in Williams v. General Motors Corp., 187 F.3d 553 (6th Cir. 1999), the totality of the circumstances approach is the “most basic tenet” of a hostile work environment analysis. Thus, the determination of whether workplace harassment was severe or pervasive enough to alter the victim’s conditions of employment and create a hostile work environment depends on the totality of the circumstances of the victim’s entire work environment.

Under the totality of the circumstances approach, an employee who was the target of incidents of racially harassing conduct can use incidents of racially harassing conduct directed at others, including employees and customers, to show that he or she worked in a racial hostile work environment. As explained by the U.S. Second Circuit Court of Appeals in Dawson v. County of Westchester, 373 F.3d 265 (2d Cir. 2004), “because the crucial inquiry focuses on the nature of the workplace environment as a whole, [an employee] who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim.” Thus, because racial harassment directed at others is part of a victim’s work environment, incidents of racial harassment directed at others is evidence that the victim’s work environment was permeated with racial harassment.

However, the totality of an employee’s workplace circumstances does not include racial harassment directed towards others of which the employee is unaware. As determined by the U.S. Tenth Circuit Court of Appeals in Hirase-Doi v. U.S. West Communications, 61 F.3d 777 (10th Cir. 1995), an employee can only rely on incidents of racial harassment directed at others “of which she was aware during the time that she was allegedly subjected to a hostile work environment.” Thus, courts do not consider evidence of incidents of racial harassment towards other which an employee did not know about when considering whether the employee worked in a hostile or abusive work environment.

Victim Does Not Have To Be Target Of Harassment

If racial hostility pervades the workplace, an employee may establish that he or she worked in a racial hostile work environment, even if the incidents of racially offensive conduct were not specifically directed at the employee so long as they occurred in his or her presence. In other words, it is not necessary to show that the employee was the intended target of incidents of racially harassing conduct in order for the employee to successfully establish a claim of hostile work environment racial harassment. Indeed, as explained by the U.S. Eleventh Circuit Court of Appeals in Reeves v. CH Robinson Worldwide, Inc., 594 F.3d 798 (11th Cir. 2010), an employee can “prove a hostile work environment by showing severe or pervasive harassment discrimination directed against her [race] even is she was not individually singled out.” Thus, if an employee is forced to work in an environment polluted with racially harassing conduct, the employee can still prove a hostile work environment racial harassment claim even if the employee was never the target of the racial harassment. However, incidents of racial harassment solely directed towards others and made outside of the employee’s presence cannot, standing alone, create a racial hostile work environment.

Racial Harassment By Supervisor

In many cases, employees are subjected to racially offensive harassing conduct by their supervisor. As observed by the U.S. Eleventh Circuit Court of Appeals in Perry v. Rogers, 627 Fed.Appx. 823 (11th Cir. 2015), when an employee’s “own supervisor engages in racial bigotry, including the use of racial slurs, the harassment is made that much worse.” Indeed, the U.S. Second Circuit Court of Appeals in Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11 (2d Cir. 2014) stated that “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment that the use” of a racial epithet by “a supervisor in the presence of his subordinates.” Unlike when an employee is harassed by a co-worker, the Perry court explained, an employee cannot “walk away” from a supervisor in order to escape the hostile work environment. Thus, courts consider racially harassing behavior by supervisors to be especially egregious and are more likely to find that the victim worked in a hostile environment.

Employers Must Stop Racial Harassment

Once an employer knows or should know that an employee is being subjected to racially harassing conduct, a remedial obligation kicks in. The employer is obligated to take prompt and effective remedial action to stop the harassment and prevent the harassment from recurring. To be adequate, an employer must take action promptly and the remedial action must be reasonably calculated to end the harassment. As determined by the U.S. Ninth Circuit Court of Appeals in Nichols v. Azteca Rest. Enter., 256 F.3d 864 (9th Cir. 2001), “the reasonableness of the remedy depends on its ability to: (1) stop the harassment by the person who engaged in the harassment; and (2) persuade potential harassers to refrain from unlawful conduct.” If the employer takes no remedial action or inadequate steps are taken to prevent the recurrence of the incidents of racial harassment, then the employer can be held liable under Title VII and the FCRA for the racial harassment to which the victim was subjected.

Employers Often Make Excuses For Racial Harassers

Although employers are required to protect their employees from racial harassment in the workplace, many employers allow racially harassing behavior to continue because of their failure to punish employees who engage in racial harassment. Instead of punishing racial harassers, employers frequently make excuses for their abusive behavior, such as by telling victims that the harasser was only joking, was not trying to offend or harm, or did not intend to insult or ridicule. By focusing on the ostensible benign intent of racial harassers and minimizing the offensiveness of the racially discriminatory conduct, many employers tolerate racial harassment and require their employees to work in a racially abusive work environment.

Under well-established Title VII law, employers cannot justify their failure to protect employees from racial harassment and prevent recurrence of racial harassment in the workplace by claiming that the harasser did not intend to be offensive or cause harm. As explained by the U.S. Tenth Circuit Court of Appeals in Lounds v. Lincare, Inc., 812 F.3d 1209 (10th Cir. 2015), whether a racial harasser’s intent was to offend or harm the victim is “legally immaterial” as to whether the victim was subjected to racially humiliating, offensive, or insulting behavior. Instead, once an employee complains about behavior that he or she perceives as race-based harassment, employers must take immediate remedial action to protect the victim and prevent the behavior from continuing. In order to fulfill their remedial obligation and demonstrate that racial harassment is neither tolerated nor condoned, employers cannot justify their refusal to punish racial harassers on grounds that they allegedly did not intend to cause discriminatory harm or offense.

Victims Who Complain Are Protected From Retaliation

Under Title VII and the FCRA, employees are protected from retaliation when they complain about perceived racial harassment in the workplace. To be protected against retaliation, employees do not have to prove that the harassing conduct was sufficiently severe or pervasive to create a hostile or abusive work environment in violation of Title VII or the FCRA. Rather, employees only have to show that they had a good faith, reasonable belief that they were opposing discrimination prohibited by Title VII and the FCRA. In other words, employees are protected from retaliation even if they are wrong about whether the incidents of racially offensive conduct constituted an actual violation of Title VII and the FCRA.

Employment Law Blog

As part of our commitment to assist and educate employees in protecting themselves against abusive employment practices, our Marion County, Florida race discrimination lawyers offer more information about racial discrimination and harassment in our employment law blog.

Free Consultation With Ocala Harassment Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, including Alachua, Citrus, Columbia, Lake, Marion, and Sumter Counties, our Marion County, Florida racial discrimination attorneys have almost two decades of experience representing racial harassment victims. If you have been subjected to racial harassment or have questions about an employer’s obligation to protect you from racial harassment at work, please contact our Marion County, Florida racial discrimination lawyers for a free initial consultation. You will receive personalized and individual attention from our Marion County, Florida employment law attorneys. Our employee rights law firm takes race discrimination and harassment cases on a contingency fee basis and if we fail to recover on your behalf, we do not get paid. Our employment discrimination attorneys are ready to take your discrimination case and fight for your rights.