On March 24, 2022, the U.S. Court of Appeals for the Fifth Circuit reversed a district court’s Federal Rule of Civil Procedure 12(b)(6) dismissal for failure to state a claim on a pro se plaintiff’s hostile work environment claim in violation of Title VII of the Civil Rights Act of 1964, holding that the plaintiff’s specific allegation—that his supervisor, in the presence of other employees, called him a derogatory racial epithet—was sufficient to give rise to a viable claim. While the legal threshold for avoiding dismissal under Rule 12(b)(6) is significantly lower than that which is applicable to motions for summary judgment, the court’s decision in Woods v. Cantrell marks a significant departure from what appeared to be well-established law—namely, that a “single utterance of a racial epithet, despicable as it is, cannot support a hostile work environment claim.”
Anthony Woods, who is Black, worked for the French Market, first as a laborer and then as a painter, under the supervision of N’Gai Smith, who is of Hispanic descent. The French Market terminated Woods’s employment following a physical altercation with an acting supervisor, whom Woods mistakenly believed was trying to attack him with a screwdriver. Woods’s discrimination claims in his subsequent lawsuit against the French Market were convoluted and multifarious, in that he claimed violations of at least twenty-one laws and named multiple individual defendants in addition to the French Market. Consequently, the district court’s order granting the defendants’ motion to dismiss under Rule 12(b)(6) totaled some forty-four pages.
Relative to Woods’s race-based hostile work environment claim, the district court agreed with the defense that the only allegation advanced by Woods that was specific to alleged racial harassment was that Smith had once called Woods lazy—a pejorative that he reinforced with a degrading descriptive and highly offensive racial epithet—in the presence of Woods’s coworkers. While acknowledging this allegation was specific and nonconclusory, the district court relied upon ample case law from the Fifth Circuit supporting the conclusion that a single incident or offensive remark by a supervisor was legally insufficient to support a hostile work environment claim. The district court dismissed this claim, along with all others.
The Fifth Circuit’s Analysis
Despite the “extensive[ness]” of Woods’s pleadings, the Fifth Circuit issued a brief, four-page opinion, readily affirming the district court’s dismissal of all of Woods’ claims, except for the hostile work environment claim under Title VII . There, the district court erred, according to the appellate court. While “[i]t is true that … a single instance of a racial epithet does not, in itself, support a claim for hostile work environment,” the three-judge Fifth Circuit appellate panel wrote, “‘a single incident of harassment, if sufficiently severe, [can] give rise to a viable Title VII claim’” under the totality of the circumstances test.
The appellate court cited opinions from several other circuits—the First, Second, Fourth, Seventh, Eighth, Ninth, and District of Columbia—that have recognized that a supervisor’s single use of a particular racial epithet is sufficiently severe to state an actionable claim for a hostile work environment. As noted in a 2013 concurring opinion by then-Judge Brett Kavanaugh, who at the time was a member of the U.S. Court of Appeals for the District of Columbia Circuit, this particular racial epithet is “a term that “sums up … all the bitter years of insult and struggle in America, [a] pure anathema to African-Americans, [and] probably the most offensive word in English.”
The Fifth Circuit’s decision in Woods resulted in the remand of Woods’s Title VII hostile work environment claim to the district court for further proceedings. In response to the defendants’ Rule 12(b)(6) motion to dismiss, Woods was not required establish a prima facie case of harassment, and courts are required to accept well-pleaded allegations as true. Accordingly, as the case proceeds through discovery and, ultimately, to a summary judgment briefing, Woods will be required to put forth sufficient evidence under McDonnell Douglas to raise a genuine issue of material fact sufficient to preclude dismissal at that stage. Again, legal analysis applicable to summary judgment motions is more rigorous than that applied to dismissal under Rule 12(b)(6), so it remains to be seen whether the alleged, one-time use of the racial epithet will be enough to survive dismissal at that stage. Even still, the Fifth Circuit’s opinion could provide sufficient basis upon which plaintiffs claiming use of racial epithets could survive summary judgment.
The outcome of this decision also serves as a reminder of how important it may be for companies to (i) maintain anti-harassment policies that provide sufficient avenues for their employees to report and complain about harassment, racial or otherwise; (ii) promptly investigate any such reports and complaints of harassment and remedy them as warranted; and (iii) train their employees on such policies. Doing so may help to prevent these types of harassment lawsuits from being filed altogether, or, potentially, lend support to motions to dismiss, but perhaps even more importantly, provide a factual and legal basis to move for summary judgment.