Race-Based Hostile Work Environment Claim Survives Summary Judgment; Evidence Included Racist Graffiti

In Matewos v. National Beverage Corporation, 2022 WL 13763262 (Wash.App. Div. 1 Oct. 24, 2022), the court, inter alia, reversed the lower court’s summary judgment dismissal of plaintiff’s claim of a race-based hostile work environment under the Washington Law Against Discrimination.

From the decision:

Shasta argues Cannady and Roberts failed to raise a genuine issue of material fact to establish that they each experienced racial harassment sufficiently severe or pervasive to affect the terms or conditions of employment and failed to prove the harassment they experienced is imputable to the employer. We disagree with both contentions.

As Shasta admitted at oral argument, the racist graffiti its employees encountered in the men’s restroom, was incredibly offensive and reasonably viewed by employees of color as threatening. September 16, 2022 oral argument at 12:00.11 Shasta nevertheless argues that this incident was a single isolated incident insufficient to create a hostile work environment under WLAD, relying on Washington v. Boeing Co., 105 Wn. App. 1, 13, 19 P.3d 1041 (2000) (single instance of Black employee being called by racial epithet, while offensive, was insufficiently pervasive to alter terms of working environment).

But as we noted in Mercer Island Sch. Dist. v. Office of Superintendent of Pub. Instruction, 186 Wn. App. 939, 980, 347 P.3d 924 (2015), federal courts now distinguish between the use of reviled racist epithets and “simple teasing and name-calling.” See Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 659, 666-67 (2d Cir. 2012) (jury could have found actionable harassment where high school student attending “a racially homogenous school” was subjected to “frequent pejorative references to his skin tone”); DiStiso v. Cook, 691 F.3d 226, 242-43 (2d Cir. 2012) (kindergarten student allegedly called “blackie” and the “N word” by peers raised question of severe harassment going beyond simple teasing and name-calling); Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1034 (9th Cir. 1998) (evidence that white children called African American ninth grade student the “N word” and wrote same epithet on classroom walls sufficient to establish racially hostile environment).

The correct standard under the WLAD, as under Title VII, is whether the conduct is “severe or pervasive.” Castleberry v. STI Group, 863 F.3d 259, 264 (3rd Cir. 2017); Haubry v. Snow, 106 Wn. App. 666, 675, 31 P.3d 1186 (2001) (to determine if harassment affected conditions of employment, court considers the frequency of the conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance). Under this test, a single incident of racist conduct can create a hostile work environment.12 Castleberry, 863 F.3d at 265. A single use of the “N word” may be adequately severe under this standard. Castleberry, 863 F.3d at 264; Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (“Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as [the ‘N-word’]”) (citations and quotations omitted). Whether a single racist incident is severe enough to constitute actionable harassment is a question of fact to be determined considering the totality of circumstances. Glasgow, 103 Wn.2d at 406.

In light of the evidence Roberts submitted, regarding the historically low number of Black and African American employees at this plant, the persistent racist remarks and epithets leveled at Roberts and other employees of color as their numbers in the plant increased in 2017, and the racist and threatening graffiti to which Cannady and other male employees of color were subjected, there is more than sufficient evidence that they both had to endure a racially hostile work environment.

And there is evidence that this graffiti affected the work environment at Shasta. Cannady testified he and other employees wanted to leave the plant and go home because they were afraid. Cannady also testified the graffiti and overall environment at Shasta made him feel “disadvantaged in the workplace” and “sick to [his] stomach.” This evidence is sufficient for a jury to find that the racist conduct of his coworkers adversely affected the terms and conditions of his working environment.

Even though Cannady has no evidence that any Shasta employee expressed a racist epithet directly at him, federal courts recognize that a plaintiff need not prove that racially harassing conduct targeted them.13 “We are, after all, concerned with the ‘environment’ of workplace hostility.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001) (supervisor use of racial slurs in general sufficient to establish hostile work environment). See also Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1033 (9th Cir. 1998) (racial attacks need not be directed at the complainant in order to create a hostile environment). In light of these facts, reasonable persons could reach different conclusions as to whether the harassment altered the conditions of Cannady’s employment.

The court also held that there were factual questions as to whether this racially hostile work environment can be imputed to defendant, such as evidence as to whether defendant’s corrective action was “reasonably prompt” and “adequate.”

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