Alleged Racial Slurs (Including Reference to Bubbles, Michael Jackson’s Chimpanzee) Held Not Actionable

In Sims v. Columbia University, NY Sup. Ct. NY Cty. 156566/2013 (Nov. 2, 2017) (J. James), the court granted defendant’s motion for summary judgment on plaintiff’s claims of age, race, and disability discrimination under the New York State and New York City Human Rights Laws.

Among its reasons for dismissal were that plaintiff did not sufficiently demonstrate the requisite “inference of discrimination.”[1]As with many other of my blog posts, I address only a subset of the court’s opinion here; if you are interested in other aspects of it, I suggest you obtain and review it.

A plaintiff may, held the court, demonstrate it “by showing that the employer criticized the plaintiff’s performance in ethnically degrading terms or made invidious comments about others in the employee’s protected group.” It cautioned, however, that “a plaintiff’s speculations, generalities, and gut feelings, however genuine, when they are not supported by specific facts, do not allow for an inference of discrimination to be drawn.”

The court summarized plaintiff’s contentions:

[A]ccording to Sims, notwithstanding that he worked with a bucket of water that sometimes had visible suds, or bubbles, the use by [others] of the word “bubbles” was racially derogatory because it was the name of the late singer Michael Jackson’s pet chimpanzee. Sims also contends that their description of the water as black, which it admittedly may appear, and reference to black fish in a conversation about Sims’s fishing trips, were really discriminatory references to his dark skin, and the reference to him as “boy”, a term of racial disrespect.

Applying the law, the court held that plaintiff “has not rebutted Columbia’s prima facie defense because”, while “even a ‘merely offensive’ racial slur is reprehensible … it is not actionable. Here, the epithets complained of did not pervade plaintiff’s work environment, having allegedly occurred on three occasions over nine years. A hostile work environment requires more than a few isolated incidents of racial enmity.”

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1. As with many other of my blog posts, I address only a subset of the court’s opinion here; if you are interested in other aspects of it, I suggest you obtain and review it.