In Carter v. Cole & Cole, Inc., d/b/a The Gulf Bowl & Captain’s Choice Restaurant, 2023 WL 1928215 (S.D.Ala. Feb. 10, 2023), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s race-based hostile work environment claim asserted under Title VII of the Civil Rights Act of 1964.
The court assessed several factors bearing on whether the alleged harassment was “objectively hostile,” including “(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct reasonably interferes with the employee’s job performance.”
As to the “severity” factor, the court explained:
The Eleventh Circuit has stated “the use of the slur ‘nigger’ is severe,” and distinguished its use when it is directed toward someone. The Eleventh Circuit has found even a one-time use of the word “nigger” established sufficient severity as a matter of law. Smelter, 904 F.3d at 1286 (“Southern Home argues that Smallwood’s ‘one-time use’ of [‘nigger’] was insufficient to establish severity as a matter of law. We strongly disagree.”); see also Adams, 754 F.3d at 1255 (finding a supervisor’s isolated act severe when he carved the slur “porch monkeys” into aluminum in the plaintiff’s presence).
While Defendant argues Plaintiff could not either subjectively or objectively find offensive the use of the word “nigger” because she used the same racially offensive language, including the slang term “nigga,” the deliberate use of the slur “nigger” by Fortner and Jacobson, both of whom are Caucasian, presents a power dynamic that evokes the reason why the slur is in fact offensive. It is a slur that is used to demean and belittle a person because of their race. [Cleaned up.]
The court thus concluded that, viewing the evidence in a light most favorable to plaintiff, there was sufficient evidence that the alleged conduct was “severe.”