In a decision issued July 14, 2017, the Third Circuit clarified that to prevail on workplace harassment claims, plaintiffs must show that the conduct was “severe or pervasive”—not “severe and pervasive” or “pervasive and regular”—such that one racial slur was sufficient to state a claim for harassment under Section 1981.
In Castleberry v. STI Group two African-American laborers filed a suit against a staffing agency and its client, an energy company, alleging harassment, discrimination, and retaliation in violation of Section 1981. Although the plaintiffs cited several examples of discrimination, their chief complaint was that a supervisor had told them they would be fired if they “nigger-rigged” a fence they were removing. The Middle District of Pennsylvania dismissed the complaint, finding insufficient facts to support their claims. As to the harassment claim in particular, the district court found that the alleged harassment was not “pervasive and regular” such that it stated a claim.
The Third Circuit reversed. In doing so, it resolved prior inconsistent precedent applying the “severe and pervasive” or “pervasive and regular” standards. The Court clarified that the correct standard for establishing harassment or hostile work environment claims under Section 1981 (or Title VII, which uses the same standard) is “severe or pervasive.” The use of the disjunctive term “or,” the Court explained, makes clear that severity and pervasiveness are alternative possibilities and that to establish severity, one isolated instance can suffice.
In applying the “severe or pervasive” standard to the case at hand, the Court found that the use of a racially charged slur accompanied by a threat of termination constituted severe conduct that could create a hostile work environment. Moreover, the court held, the plaintiffs’ other allegations of discriminatory comments could amount to “pervasiveness” such that the plaintiffs pled a plausible claim under either theory. As such, the Court reversed the dismissal of the case.
This case is a cautionary tale for employers and signals a possible uptick in the number of workplace harassment cases based on an isolated incident. It also underscores the importance of periodic anti-harassment and anti-discrimination trainings—particularly for supervisors—as well as the need for an effective internal complaint procedure.
