Employers Be Warned – A Single Use Of A Racial Slur Can Sustain A Workplace Harassment Claim


By: Barry S. Brownstein

Plaintiffs, Atron Castleberry and John Brown, brought a claim against staffing agency STI Group based upon their experience after being assigned to work as general laborers for Chesapeake. They allege in their lawsuit that a supervisor, after assigning them to a fence-clearing operation, threatened that they would be fired if they “[N-word]-rigged” the job. Two weeks after reporting the offensive language to a superior, they were fired without explanation. They were rehired shortly thereafter, only to be terminated again for “lack of work.”

Plaintiffs brought harassment, discrimination and retaliation claims as part of their lawsuit.  The District Court dismissed their claims on a motion to dismiss. The Third Circuit, however, found that the trial judge had applied the wrong standard in concluding that the two men needed to show their treatment had been “pervasive and regular.”  Referencing past rulings that characterized the standard alternatively as “pervasive and regular,” “severe and pervasive” and “severe or pervasive,” the Third Circuit clarified the standard required to assert a viable workplace harassment claim, holding that “severe or pervasive” is the correct standard.  Under the clarified standard, the panel concluded that the allegations were sufficient to survive a motion to dismiss. The context of the slur which came in connection with a threat of termination was something the Third Circuit considered an important factor in determining whether the claim cleared the “severe or pervasive” hurdle.

Based upon the inconsistencies in the Third Circuit’s prior holdings on the subject and the relevant precedent from the Supreme Court, it was not unexpected that the Third Circuit adopted the disjunctive standard of “severe or pervasive.”

Employers can protect themselves by having clearly defined policies, by regularly updating their employee training and even training supervisors separately from line employees.

For any questions, please contact Barry Brownstein at [email protected].