Race-Based Hostile Work Environment Claim Survives Summary Judgment, Notwithstanding Lack of “Overt” Racial Statements or Slurs

In Taylor v. Kaiser Foundation Health Plan of Colorado, No. 21-cv-00012-NYW-NRN, 2022 WL 16855697 (D.Colo. Nov. 10, 2022), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s claim of a race-based hostile work environment claim under Title VII of the Civil Rights Act of 1964.

From the decision:

The Court finds that Plaintiff has sufficiently raised a genuine dispute of material fact regarding whether Kaiser’s conduct toward her was based on her race and whether Kaiser knew of the alleged harassment of Ms. Taylor. As mentioned above, Ms. Taylor’s hostile work environment claim is not based on the use of any overt race-based statements or slurs against her by anyone at Kaiser. Rather, Plaintiff claims that Kaiser—specifically, Dr. Smigelski, Ms. de Picciotto, and Mr. Mills—ignored Plaintiff and Ms. Birdie Johnson, the only two Black massage therapists at the CCM, including ignoring, avoiding, or failing to investigate complaints of race-neutral bullying or perceived racial discrimination. Indeed, in the context of gender, courts have specifically held that neutral-appearing conduct could still form the basis for a hostile work environment claim. See, e.g., Chavez v. New Mexico, 397 F.3d 826, 833 (10th Cir. 2005) (recognizing that a plaintiff “can use a substantial amount of arguably gender-neutral harassment to bolster a smaller amount of gender-based conduct on summary judgment” and explaining that “what is important in a hostile environment claim is the environment, and gender-neutral harassment makes up an important part of the relevant work environment”); Delsa Brooke Sanderson v. Wyo. Hwy. Patrol, 976 F.3d 1164, 1174 (10th Cir. 2020) (“[I]t is ordinarily the province of the jury to decide whether facially sex-neutral conduct constitutes harassment based on sex.”); Waldo, 726 F.3d at 815 (recognizing that “ ‘[f]acially neutral incidents may be included’ in a hostile-work-environment analysis of the totality of the circumstances when there is ‘some circumstantial or other basis for inferring that incidents sex-neutral on their face were in fact discriminatory’ ” (quoting Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002)); O’Rourke v. Providence, 235 F.3d 713, 730 (1st Cir. 2001) (noting that “[c]ourts should avoid disaggregating a hostile work environment claim, dividing conduct into instances of sexually oriented conduct and instances of unequal treatment, then discounting the latter category of conduct” because “such an approach not only ignores the reality that incidents of nonsexual conduct—such as work sabotage, exclusion, denial of support, and humiliation—can in context contribute to a hostile work environment, it also nullifies the harassing nature of that conduct”).

The court proceeded to list various incidents which, together, comprised an actionable hostile work environment. This decision fleshes out the U.S. Supreme Court’s observation, in its 1993 decision of Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993), that there “is not, and by its nature cannot be, a mathematically precise test” for a hostile work environment claim.

Share This: