A Cautionary Tale About Same Race Discrimination

Fox Rothschild LLP

Fox Rothschild LLP

A Black employee complains to Human Resources that her supervisor has directed racial slurs at her. The supervisor is Black too. Is this a defense to liability for the employer under Title VII? Hardly.

The Eighth Circuit considered this issue in Ross v. Douglas County, Nebraska. Odis Ross, a Black male, worked at the Douglas County Correctional Facility. His supervisor, Larry Johnson, was also Black. Johnson began using racial epithets, including the n-word and “black boy,” when addressing Ross. Ross resigned and sued his former employer, Douglas County, for race discrimination and harassment under Title VII. The jury awarded Ross $100,000 for emotional distress and mental anguish. Douglas County appealed. After noting that “same race” claims—where a member of a race accuses another member of the same race of race-based mistreatment—are actionable under Title VII, the Eighth Circuit found that a reasonable jury could have concluded that Johnson’s harassment was because of Ross’ race. The racial slurs used would not have been directed at a white person; the only reason Johnson used those slurs was because Ross is Black; and that Johnson was also Black did not alter this.

Ross is not an anomaly. In Johnson v. Strike East Harlem Employment Group, et al., for example, the allegations were similar—a Black employee accused her Black supervisor of calling her the n-word and making other racially charged statements. The supervisor’s defense was that his use of the n-word was not derogatory, but rather a form of culturally acceptable tough love between Black persons. The New York jury rejected this explanation and awarded the employee $250,000 in compensatory damages (an amount later reduced by the court) and $30,000 in punitive damages.

The lesson: slurs based on race, sex, age, national origin, or any other protected trait are never appropriate in the workplace, even between members of the same class, and can expose employers to significant liability under Title VII. While the shared class between the victim and the alleged perpetrator is worth emphasizing in the defense of the case, it is far from dispositive, as Ross and Johnson illustrate. Under Title VII, the key questions are whether the plaintiff perceived the conduct to be based on a protected trait, and whether a reasonable person would agree. Employers should not bet the farm based on the intent of the perpetrator alone.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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