In Spencer v. Global Innovative Group, LLC, 17 Civ. 7604 (PGG) (BCM), 2023 WL 6633860 (S.D.N.Y. Oct. 12, 2023), the court declined to adopt a Magistrate Judge’s Report & Recommendation that plaintiff’s race-based hostile work environment claim be dismissed.
This decision – and in particular, its thorough evaluation and analysis of pertinent case law (both within and without this case’s jurisdiction – is instructive as to whether a hostile work environment claim may be predicated on a single act – here, the utterance of a racial slur (“nigger”).
From the decision:
Plaintiff claims that while he and a black coworker were at work and “within earshot,” Defendant Hussain “loudly and clearly” used the n-word “on more than five occasions.” (Am. Cmplt. (Dkt. No. 23) ¶ 26) Hussain did not direct the racial slur at Plaintiff or his coworker. He instead used the term in a “personal phone call.” (Id.) Plaintiff pleads that Hussain was aware that Plaintiff and his coworker were within earshot, however. (Id.; see also R&R (Dkt. No. 37) at 10) In sum, it is clear from the Amended Complaint’s allegations that the racial slur was not directed at Plaintiff, his co-worker, or a customer of the store, and that Hussain’s alleged use of the racial slur was entirely unrelated to the business being conducted at the store.
Because the Amended Complaint alleges no other conduct that contributed to a hostile work environment, the issue presented by Defendants’ motion to dismiss is whether Hussain’s mere use of the racial slur in the workplace – while speaking with a friend or associate about a personal matter – can constitute “sufficiently severe” conduct so as to state a hostile work environment claim.
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Acknowledging the “ ‘high hurdle with respect to the level and frequency of offensive conduct that must be present’ to prevail on [a] hostile work environment claim[ ],” Ruiz, 2015 WL 5146629, at *8 (quoting DelaPaz, 2003 WL 21878780 at *3), this Court – applying de novo review – finds dismissal at this time improper. Banks, Rivera, and a long line of other precedents teach that (1) a single incident can create a hostile work environment if it is “extraordinarily severe”; and (2) the n-word is the most “severe” slur in the English language. Given these circumstances and the conduct alleged here – repeated use of the n-word by a supervisor in the presence of his African-American subordinates in a tone of voice calculated to be heard – dismissal is premature.
The court declined to follow case law, cited by defendant, in which a co-worker (rather than, as here, plaintiff’s supervisor) used the n-word, noting that the Second Circuit has “placed special emphasis on a supervisor’s use of the n-word in creating a hostile work environment.”