Last week, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on a racial harassment and retaliation claim. Jones v. Fluor Facility & Plant Services, No. 24-5249 (6th Cir. 3/5/25). The Court found that the plaintiff had produced enough evidence that "seemingly neutral" conduct was race related, severe and pervasive. The plaintiff had also complained to his manager and supervisor, who took some remedial action, but his co-workers then began ostracizing him and hiding his equipment. HR referred to his as “horseplay” that was unrelated to his race even though he was often referred to as “boy” and a ‘rapper” and “basket ball player.”
According to the Court’s opinion, the plaintiff had been
hired for the day shift, when he was harassed by a white co-worker for two
weeks. That co-worker was fired and the
plaintiff was transferred to the nigh shift, where there were only five
employees. He was again racially
harassed, including the n-word. His
supervisor took action within two weeks without him having to complain. Thereafter, he was subjected to less obvious
harassment, including hiding his equipment, ostracizing him, and stereotypical
comments about how he must be good at basketball or be a rapper. After he was counselled for working without
his safety harness, which he alleged had been hidden from him by his racist
co-workers, HR conducted an investigation which found the “horseplay” was
unrelated to his race. However, the investigation
seemed to stall for several months, so he filed an EEOC Charge. The district court also agreed that the
alleged harassment, although daily, was not severe or pervasive enough to
constitute actionable harassment and seemed unrelated to his race. The Sixth Circuit reversed.
We conclude that [the plaintiff]
has established, at the very least, a factual dispute as to whether this
seemingly neutral conduct was race-related. We have said that “[c]onduct that
is not explicitly race-based may be illegally race-based and properly
considered in a hostile-work-environment analysis when it can be shown that but
for the employee’s race, [he] would not have been the object of harassment.”
. . . .
[The Plaintiff] presents evidence
of two categories of incidents fairly tied to his race. The first set of
incidents are verbal harassment directly linked to Jones’ race, the second set
of incidents may facially present as race-neutral, but a factfinder could
nevertheless infer that they were race-based. . . .
As to the first category, Jones
established three uses of the n-word by his coworkers: One direct usage, when [one
co-worker] referred to [the plaintiff] as a “nigger,” and two indirect usages,
when [another co-worker] used the term during the November 9 meeting to argue
that it should be okay to continue to refer to [him] that way. The n-word is
indubitably racist, “highly offensive and demeaning,” . . .
As the district court acknowledged,
[the plaintiff] also submitted evidence that [a co-worker] goaded him to make
racist jokes, and [that co-worker] told racist jokes himself. Whether [his]
evidence of the “content or frequency” of these occurrences was insufficient,
or whether they were “mere offensive utterances,” as the district court
concluded, . . . goes to whether the harassment Jones faced was
severe or pervasive, but not to whether the harassment was race-based. A
factfinder could readily conclude that “but for” [his] race, he would not have
been the subject of [that] goading. . .
. The same is true for [that co-worker’s]
comment that another white coworker, . .
. , was [his] “boy” after [that person] spilled oil on himself. [He] fairly
understood this comment to be racial in nature, as it allows the inference that
[the co-worker] was implying a familial relationship between [the person] and [the
plaintiff] after [the person’s] skin was presumably rendered black because of
the oil.
. . . “facially neutral abusive
conduct can support a finding of animus sufficient to sustain a hostile work
environment claim when that conduct is viewed in the context of other, overtly
discriminatory conduct.” . . .
For the same reasons, we can
attribute racial motivation to the night crew’s ostracization of [the
plaintiff]. There were “multiple instances in which [he] was ostracized” as the
only African American on the night crew. . . As [his supervisor] testified, efforts to
exclude [him] were led by [two coworkers], who had previously made racist
comments or used racial epithets. Further, the ostracization coincided with
racist verbal harassment. This provides sufficient evidence for a reasonable
factfinder to conclude that Jones’ complained-of ostracization was based on
race. . . .
A rational factfinder could also
find that other incidents cited by [the plaintiff] that may lack explicit
racial animus may nevertheless constitute racial harassment under Title VII.
For one, [he] presented evidence that his white coworkers referred to him as
“boy.” We have said that although not explicitly racial, a white colleague
“referring to an adult African American colleague as ‘boy,’ without ‘modifiers
or qualifications’ can qualify as evidence of impermissible racial bias.” . . .
. Likewise, white coworkers’ comments referencing [him] being a rapper or a basketball
player may not be explicitly racial out of context. But these comments
undoubtedly reflected African American stereotypes such that a rational
factfinder could find that they would not have been made but for Jones’ race,
as Jones recognized. . . . . Therefore,
the comments may be “properly considered in a hostile-work environment
analysis.” . . .
. . .
In the present case, the district
court erred in granting summary judgment to [the employer] on the severe or
pervasive prong of [his] claims because there is sufficient evidence in the
record that he subjectively regarded his work environment as abusive, and that
his coworkers’ racial harassment was severe or pervasive enough for a
reasonable person to find his work environment hostile. The district court did
not separately evaluate the subjective and objective prongs of the severe or
pervasive test and appeared to proceed solely on the objective prong.
Nevertheless, [the employer] argues that [he] did not subjectively perceive a
hostile work environment because he stated that [a co-worker’s] use of the
n-word was a “term of endearment,” and he only complained of racial harassment
in March 2021, “‘saving’ his complaint” for when he faced discipline for
failing to use his harness. . . . We reject [its] arguments inasmuch as Jones
has provided sufficient evidence that he subjectively regarded his work
environment as hostile.
As an initial matter, “the intent
of the alleged harasser is irrelevant in the court’s subjective prong
analysis.” . . . That [the plaintiff] perceived that [a particular
co-worker] meant his use of the n-word as a term of endearment does not mean
that [he] perceived the slur to be inoffensive. And [the co-worker’s] intent
“is not a defense under the subjective test if the conduct was unwelcome.” . . . [He] provided sufficient evidence that he
regarded [the co-worker’s] use of the n-word to be offensive and unwelcome. [He]
characterized [that] use of the slur as a “term of endearment” because [it]
“said it to [him] as if we say it to each other all the time,” as though the
two were friends. . . . But he clarified that he was not excusing [the]
utterance of the slur as harmless. . . .
[He] further described the possibility
of [his co-worker] calling him the n-word again as a “problem” that was solved
when [he] was moved to another work location and was “no longer in [his] face
every day.” . . . . [He] also made clear
that he perceived his coworkers’ use of racial epithets to be offensive, and he
perceived their conduct to be abusive. .
. . Indeed, by March 2022, [he] felt so abused by his coworkers that he
expressed suicidal and homicidal ideation because of stress at work. . . .
“In addition, the subjective
component of the prima facie case does not require that a plaintiff report a
hostile work environment.” . . . So,
contrary to [the employer’s] argument, [his] failure to report racial
harassment to its human resources before March 2021 does not cut against our
conclusion that he provided sufficient evidence that he perceived his work
environment as abusive. “A plaintiff can be subjected to [racial] harassment
sufficiently severe or pervasive as to constitute a hostile environment and
yet, for a number of valid reasons, not report the harassment.” . . . For example, [he] testified that he did not
immediately report [the] statement because he was afraid his coworkers would
retaliate if he reported. He also questioned whether it would be “right” to
report the incident, given that it would affect [his co-worker’s] career when [that
person] was new to the workforce and, from [his] perspective, possibly unaware
of the “mistake” he made in using the n-word. . . . Nevertheless, the record shows that [he] did
report racial harassment multiple times before March 2021, albeit not directly
to [its] human resources. [He] reported the incident with [day shift], on the
day shift, to [his manager], presumably resulting in [the] firing. [He] also
participated in the [his supervisor’s] November 9, 2020 meeting addressing the
instances of harassment against [him] in November 2020. And, after [a
co-worker] threw grease on his car, [he] immediately showed [his supervisor]
evidence of [that] conduct. So, rather than “‘sav[e]’ his complaint of
harassment for the proverbial ‘rainy day,’” . . . . the record contains evidence that [he]
brought his coworkers’ continual racial harassment to his superiors’ attention.
At present, [he] has provided evidence, sufficient to preclude summary
judgment, that he subjectively regarded his work environment as abusive.
. . .
. . . Viewing [his] evidence in the light most
favorable to him, [he] experienced a weeks-long period of verbal hostility, . .
. The verbal hostility “directly affected the day-to-day conditions of [his]
work environment,” . . . so much so that his supervisor, . . , “had enough” of the harassment and held
a meeting to stop it. . . The verbal harassment did not stop after the
meeting but continued. And, as in Schlosser, the verbal hostility
escalated into a physical threat when [a co-worker] threw grease on [his]
windshield. . . . In addition, [his] coworkers ostracized him
for months, subjected him to stereotyping, and called him “boy.” This is
clearly enough evidence of severe or pervasive harassment for Jones to submit
his racially hostile work environment claim to a jury. Contrary to the district
court’s conclusion, [he] does not allege instances of “offensive utterances and
social avoidance . . . alone,” . . ..
Rather, he presents evidence of persistent racial harassment that took various
forms, from overt verbal harassment, to physical conduct, to persistent
stereotyping, to ostracization.
The district court came to its
erroneous conclusion because it failed to consider all of [his] evidence of
racial harassment, and failed to consider [his] evidence holistically. It
erroneously discounted [his] evidence, other than “the use of racial epithets
and the incident where [the co-worker] poured grease on his windshield,” id.,
for two reasons. First, it concluded that [his] evidence paralleled that in Reed
v. Procter & Gamble Manufacturing Co., in which we found that a
plaintiff’s allegations of an isolated racist gesture and racist remarks did
not amount to severe or pervasive harassment when the plaintiff failed to tie
his other allegations of harassment, including that he was the “subject of unfriendly
treatment from some colleagues,” to his race. . . . Second, it concluded that “the majority of [his]
claims [we]re simply too vague to support the notion that his coworkers’
conduct was sufficiently severe or pervasive.”
But [his] evidence of
ostracization, as well as his evidence that he was subjected to pervasive
racial comments, stereotyping, and called “boy,” are fairly considered as
contributing to the totality of severe or pervasive racial harassment. The
cases on which [the employer] and the district court rely for the proposition
that [his] complained-of workplace exclusion did not contribute to a pattern of
severe or pervasive racial harassment, particularly Reed, are distinguishable.
The Reed plaintiff complained only of social
isolation, not the ostracization that affected his work like in this case.
The district court also erred in
removing many of [his] allegations of harassment from the severe or pervasive
calculus on the grounds that the evidence was too vague. The court
characterized [his] evidence of ostracization, stereotyping, and being called
“boy” as insufficiently specific to contribute to the totality of the
circumstances of severe or pervasive racial harassment. But we have “noted that
when a victim makes allegations of ongoing harassment, the ‘inability to
recount any more specific instances goes to the weight of her testimony, a
matter for the finder of facts.’”
The Court also found that the plaintiff produced sufficient
evidence of retaliation by his co-workers to survive summary judgment.
However, the Court remanded the harassment claim for the
court to consider whether the employer had sufficient knowledge of the alleged
racial harassment to impose vicarious liability because the trial court had not
addressed that issue in its opinion.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
