Harassment Need Not Be ‘Hellish’ to Be Actionable

Gates v. Board of Education of the City of Chicago (7th Cir. 2/20/19) asks a question that we see time and again in harassment cases — how bad does does the conduct have to be to support a harassment claim.

The answer is bad enough, but not so bad so as to be classified as “hellish.”

Gates is a racial harassment case. The plaintiff worked as an engineer at a Chicago school. He alleged that his supervisor, Rafael Rivera, committed three distinct acts of harassment over the nine-month period spanning June 2013 though March 2014.

  • Gates claimed that in June 2013, Rivera told him he would not be promoted because he was black.
  • Gates claimed that in late summer 2013, Rivera told him that “when someone farts and a black guy’s sitting there,” it’s called a “shit-sniffing nigger.”
  • Gates claimed in a March 2014 meeting, Rivera told him that he’s “tired of you people,” and when Gates asked to whom he was referring, Rivera responded, “Nigger, you know what I’m talking about.”

The district court granted summary judgment to the employer, stating that “[t]he workplace that is actionable is one that is ‘hellish.’” The 7th Circuit, however, squarely rejected this standard and reinstated Gates’s harassment lawsuit.

While a “hellish” workplace is surely actionable, plaintiffs’ evidence need not show a descent into the Inferno.… The issue is whether the discriminatory conduct Gates testified to qualifies as sufficiently severe or pervasive to alter the conditions of his work environment.… In short, when the harassment involves such appalling racist language in comments made directly to employees by their supervisors, we have not affirmed summary judgment for employers.…

If the only evidence of racial harassment Gates had was a co-worker’s use of the three epithets uttered by Rivera, we would likely reach a different conclusion in this case. Given Rivera’s position as Gates’s supervisor, however, if a jury credits Gates’s testimony about Rivera’s comments, it could reasonably find that Gates suffered an actionable hostile work environment.… A jury would likely have a difficult time concluding that a supervisor calling his employee the “N-word” and threatening to write up his “black ass” were not examples of harassing comments motivated by race. Although Rivera’s conduct was relatively infrequent and not “physically threatening” or “humiliating” in a public setting, it was severe and humiliating.

Case closed (or at least, case going to a jury to decide).

Let me also suggest, however, that the academic debate of how severe or pervasive is severe or pervasive enough to rise to the level of a Title VII violation is not your concern as an employer.

If an employee complains about misconduct, your reaction should never be, “Well, I understand, but it’s not that bad, or at least not bad enough for you to sue us; now go back to work.” Your obligations as an employer recipient of complaint of workplace harassment never changes—investigate and take prompt remedial action to reasonably ensure that the harassment stops and does not repeat.

If you involve yourself in the academic exercise of whether you can be sued based on the alleged misconduct, you’ve completely lost the employee-management forest for the harassment trees.

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