The Court admitted that the black employee’s evidence as to the fourth factor was weak. Although she offered little evidence supporting the fourth factor, the Appellate Court explained that no single factor is required to establish the objective component. This means that harassment can still violate the law even if it is not so extreme that it produces tangible effects on job performance. Thus, this black employee’s claim did not fail simply because she provided little or no evidence concerning the impact of the harassment on her job performance. The Court succinctly explained to Florida employers: “Considering the totality of the circumstances, particularly the daily frequency and extreme severity of the harassment, including racist remarks made directly to [the black employee] about her, we conclude that she provided sufficient evidence for a reasonable jury to find that the harassment was objectively severe or pervasive.

Did the black employee offer sufficient evidence to create a genuine issue of material fact that the company had actual notice of the hostile work environment?

In general, to survive a company’s motion for summary judgment, an employee also must provide evidence from which a reasonable jury could conclude that the employer was liable for the harassment she suffered.

In this case, the racist comments were allegedly made by a co-worker, not a supervisor. Where the perpetrator of the harassment is merely a co-employee of the victim, the employer will be held directly liable if it knew or should have known of the harassing conduct but failed to take prompt remedial action.” Put another way, an employer’s direct liability can be established through evidence of two types of notice: actual and constructive. Actual notice is established by proof that management knew of the harassment, whereas constructive notice will be found where the harassment was so severe and pervasive that management should have known of it.

The lower (district) court concluded that the black employee failed to establish the employer’s notice of the racial harassment in the office because it was undisputed that she failed to report the harassment until the final day of her employment.

The Appellate Court explained that despite this concession, the record contained a genuine dispute of material fact as to whether a supervisor —and therefore the company—had actual notice of the co-workers’ racist comments.

The reason was because the black employee’s testimony would enable a reasonable jury to conclude that the supervisor overheard at least some of the racist comments and thought they were funny. The Court explained that the supervisor “could not have found the racist remarks humorous if she had not overheard them. The record thus contains evidence that [the supervisor] had actual notice of the hostile work environment despite [the black employee]’s failure to report it.” Therefore, the Court imputed the supervisor’s notice to the company.

The 11th Circuit Court of Appeals ruled that the district court erred in granting summary judgment for the employer on the employee’s hostile work environment claim.

8 racist remarks in 8 weeks: hostile work environment?

Hostile Work Environment Claim

In general, Title VII makes it unlawful for an employer to discriminate against an employee with respect to her terms, conditions, or privileges of employment, because of her race. The Supreme Court has held that this prohibition included requiring people to work in a discriminatorily hostile or abusive environment.

In order for an employee to prove a hostile work environment claim, the employee must show that the workplace is permeated with discriminatory intimidation, ridicule, and insult, which is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

When the employee’s harassment claim is based on her race, she must prove five elements: (1) she belongs to a protected class, (2) she was subjected to unwelcome harassment, (3) the harassment was based on her race, (4) the harassment was sufficiently severe or pervasive to alter the terms of her employment and create a discriminatorily abusive working environment, and (5) the employer is responsible for the environment under a theory of vicarious or direct liability.

In this case, the district court concluded that the black employee failed to establish the fourth and fifth of these elements. The appellate court disagreed, as explained below.

Did the black employee offer sufficient evidence to create a genuine issue of material fact that the harassment was severe or pervasive?

To establish that harassment was sufficiently severe or pervasive to alter the terms or conditions of her employment, an employee must prove that her work environment was both subjectively and objectively hostile. In other words, the employee must first establish that she subjectively perceived the environment to be abusive. Then she also must satisfy the objective component by showing that her work environment was one that a reasonable person would find hostile or abusive.

The Court began with the employee’s subjective perception of her work environment. The Court noted that the employee repeatedly testified that enduring her co-workers’ racist comments was stressful and hurtful. She also explained that it felt like the harassment never stopped, as though her co-workers were pushing her to see how much she could take in the hopes that she would just quit and leave.

The employer argued that the employee could not have perceived her work environment as hostile because she failed to report her co-workers’ racist comments to her supervisors. The Court of Appeals rejected this argument, explaining that a reasonable jury could conclude that she subjectively perceived her co-workers’ conduct as hostile and abusive.

Turning to the objective inquiry, courts in Florida consider four factors when evaluating whether harassment was objectively hostile:

(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 unreasonably interferes with the employee’s job performance.

Although these factors help guide the inquiry, the objective element is not subject to mathematical precision, and a court will view the evidence cumulatively and in the totality of the circumstances. The Appellate Court concluded that a reasonable jury could find the harassment was objectively hostile.

In reaching such a conclusion, the Appellate Court explained, beginning with the first factor (the frequency of the conduct), the employee provided ample evidence that the racial harassment was frequent; she testified that she heard racist comments “every day” during her employment. And even though her employment lasted only two months, she gave approximately eight examples of racist remarks that she overheard or that were directed at her. “Even if these eight examples were the only racist remarks made in [her] presence during her two months of employment, this Court has held that harassment was pervasive when it occurred at a similar frequency,” (citing another case 18 years earlier where “roughly fifteen separate instances of harassment over the course of four months” was pervasive).

The white office manager described an occasion when she saw black people exiting a bus at a Wal-Mart store and commented that it looked like they were “chained together” and that she wished she could “send them all back to Africa.”

The black employee never reported any of these comments to any supervisor until the last day of her employment, but she claimed that the Branch Manager overheard at least some of the remarks. According to the black employee, her co-worker’s racist comments were funny to everybody that worked in the office, even the Branch Manager.

On the black employee’s last day of employment, a white co-worker called her a “dumb black” n-word during an argument. According to the black employee, she was fired for reporting this epithet, along with her co-workers’ other racist comments, to her direct supervisor. The employer says it fired her for legitimate business reasons.

Can a Florida business be sued for sexual harassment for a hostile work environment when there are weekly racist comments over a 2 month period?

That is what recently happened. When Brenda, black woman, was hired, she was the only black person who worked in her office, and she often overheard her co-workers making racist comments, some of which were directed at her.

A white co-worker told the white office manager that black men were “lazy” and “the scum of the earth.” The co-worker also said that black women had babies on welfare, President Barack Obama’s big ears made him look like a monkey, and that the black co-worker’s hair made her look like a “mixed monkey” from the movie Planet of the Apes.

After the black employee was fired, she sued the employer for, among other things, under Title VII of the Civil Rights act, for a hostile work environment.

The district court granted summary judgment for the employer and the employee appealed to the 11th Circuit Court of Appeals (controlling in Florida). The appellate court disagreed with the lower court’s conclusions that, as a matter of law, the harassment suffered was not severe or pervasive and the employer lacked notice of that harassment. Smelter v. S. Home Care Servs., 2018 U.S. App. LEXIS 27248 (11th Cir. 2018).

As to the second factor, the severity of the conduct, the Court ruled that a reasonable jury could conclude that the harassment was severe. Most severe of all and addressed directly to the black employee herself was the co-worker’s calling her a “dumb black” n-word. Implicitly acknowledging the egregiousness of this epithet, the employer argued that the co-worker’s “one-time use” of it was insufficient to establish severity as a matter of law. The Court of Appeals admonished, “[w]e strongly disagree. This Court has observed that the use of this word is particularly egregious when directed toward a person in an offensive or humiliating manner.” It was important to the Court that here the co-worker did not simply use the epithet in the black employee’s presence; instead, she directed it at the black employee as a means of insulting her in the midst of an argument. What is more, the co-worker’s use of this word was not an isolated instance—it came at the end of two months during which the black employee had endured racist comments.

The other comments that the black employee endured in the workplace involved, what the Court described as, “obvious racial slurs conveying highly offensive derogatory stereotypes of black people.” The Court concluded that comments like these are sufficiently severe to create a hostile work environment.

The employer argued that, despite the evidence regarding the frequency and severity of the harassment, the black employee cannot establish the objective component of her claim because she provided no evidence of the third and fourth factors—that the harassment was physically threatening or that it unreasonably interfered with her job performance. Again, the Appellate Court disagreed. The third factor is established by conduct that is physically threatening or humiliating. The only evidence of physically threatening conduct was the black employee’s testimony that a co-worker stood up during their altercation and hit the desk like she was about to charge at the black employee. But the black employee also presented ample evidence of humiliating conduct. She testified that racial slurs were directed at her every day. The Court expressed that it was “surely humiliating” for her, a black woman, to hear a co-worker say that black people are “the scum of the earth,” that she looked like a “mixed monkey,” and that black people should be sent back to Africa, and a co-worker also called the black employee a “dumb black ni***r.” Therefore, the Court determined that the black employee provided substantial evidence of humiliating conduct that satisfies the third factor.

What does this mean to Florida employers?

Florida employers should take away two important lessons from this case:

1) weekly racist remarks among co-workers can be enough to support a hostile work environment claim in Florida; and
2) If a supervisor overhears racist remarks, that is enough in Florida to hold a Florida company directly liable because it will be considered that it should have known of the harassing conduct but failed to take prompt remedial action;

Training both low-level staff and also managers is crucial to prevent a hostile work environment. It is also clear after this very recent case that the Florida courts will hold Florida companies liable if their supervisors hear inappropriate remarks (in this case racist) and turn a deaf ear to them. Florida employers must update their training to make it clear to their managers that they cannot take a head-in-the-sand approach to managing their subordinates.

If you have not updated your harassment training to include bystander intervention and civility aspects, now is the time to do so. Our law firm can provide such live training tailored to your specific workplace. If you desire such training, please email the law Office of David Miklas or call us at 1-772-465-5111.

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Law Office of David Miklas, P.A.

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