Last week, the Sixth Circuit reversed an employer’s summary judgment on a racial harassment claim brought by two former truck drivers. Smith v. P.A.M. Transport, Inc. , No. 24-5549 (6th Cir. 9-25-25). The Court found that calling the plaintiffs “monkey a__” or ANY derivative of monkey was as racially derogatory as the n-word, even if it was mostly used against them by their black supervisor. It also refused to find problems with whether black and African-American can be used interchangeably for evidentiary purposes when comparing the plaintiffs to “white” employees. It rejected the employers’ evidence for an affirmative defense at the summary judgment stage concerning whether it took reasonable steps to prevent harassment when it promulgated an anti-harassment policy without evidence that it was effectively enforced or followed up with management training. The Court’s majority also found sufficient evidence of comparative treatment to sustain the disparate treatment allegations.
According to the Court’s decision, the plaintiff truck
drivers both worked out of the Nashville terminal and alleged that they were
paid a day rate, but were required to drive more hours and miles per week and
in damaged trucks than their white counterparts. One was fired after two negative performance
evaluations, but without prior disciplinary warning. Both alleged that they were “regularly”
called “money a__” by their black supervisor, who was otherwise respectful in
communicating with white truck drivers. They alleged that their supervisor threatened to
withhold pay or fire them and regularly demeaned them. They alleged that they complained with “liaisons”
about the mistreatment, but that nothing was done to rectify or stop it. Their
supervisor reported to a white manager. Both sued under Title VII and Section 1981. The trial court granted the employer summary
judgment on the grounds that they had failed to produce sufficient evidence of
a racially hostile work environment or disparate treatment.
The Court rejected the district court’s conclusion that derivatives
of “monkey” were not plainly racist.
We have recognized that, “[g]iven
the history of racial stereotypes against African-Americans and the prevalent
one of African-Americans as animals or monkeys, it is [] reasonable—perhaps
even [] obvious”—to conclude that the invocation of the term “monkey” against
an African American is “intended [as a] racial insult.” . . .
Consequently, circuit courts,
including our circuit, have overwhelmingly held that the use of the term
“monkey” against an African American employee constitutes evidence of
race-based harassment sufficient to support a hostile work environment claim.
For example, we have found evidence of racial harassment where, among other
things, African American firefighters were assigned to workstations labeled
“Monkey Island.” . . .
. . .
. . . The term “monkey” and its derivatives,
while not overtly racial in isolation, have a long and well-understood history
as racial slurs when directed at African Americans. . . . . In this case, two African American
plaintiffs have testified that their supervisors directly and repeatedly called
them “monkey” and “monkey ass.” The use of the terms in that context raises a
reasonable “inference of discrimination on the basis of” race. . . . . That suffices to show race-based
harassment at the summary judgment stage. The district court’s determination
that Plaintiffs’ testimony about the use of these terms does not constitute
“evidence of the use of race-specific and derogatory terms,” therefore, was
plainly incorrect.
The Court rejected as “frivolous” the argument that being
called “money a__” was somehow not racist when being called monkey was inherently
racist.
[The employer] offers no reason—and
we can think of none—as to why the addition of the word “ass” somehow obviates
the racialized nature of the term “monkey.” To the contrary, the “use of the
term ‘monkey’ or derivative terms” against African Americans constitutes compelling
evidence of racial harassment. . . . Simply put, there is no meaningful difference
between the terms “monkey” and “monkey ass” when used by a supervisor against
an African American employee, as alleged here.
The Court rejected the district court’s conclusion that the
racist nature of the term was reduced because the speaker was also African-American. Just as there can be same-sex harassment,
there can be same-race harassment.
To be sure, in some contexts, the
fact that the alleged perpetrator is within the same protected class as the
alleged victim may be material. But on this record, we see no fact or reason
why [the supervisor’s] race undermines the conclusion that a reasonable jury
could find his (and his supervisor’s) alleged use of “monkey” and “monkey ass”
to be racially derogatory.
The Court also rejected the argument that the plaintiffs
were required to prove that the terms were not used against white employees.
The Court also rejected as “deeply flawed” the district
court’s conclusion that African-American and “black” could not be used
interchangeably, meaning that the African-American plaintiffs failed to carry
their burden of proof by comparing themselves to “white” employees, who could
also be African-American.
This reasoning is deeply flawed. It
starts from the erroneous premise that “African American” and “Black”—and, in
turn, “non-African American” and “white”—are rigid categories of identity that
can never be used interchangeably. Contrary to that assumption, our Title VII
jurisprudence on race discrimination governs, and we have often used “African
American” and “Black” interchangeably and compared “African Americans” with
“whites.” . . . . The district court attempted to justify its additional
evidentiary requirements by pointing to Title VII’s prohibition on
discrimination based on skin color, reasoning that “discrimination based on
color is distinct from discrimination based on race.” . . . . But that distinction does not obviate
our well-established caselaw recognizing “Black” and “white” as racial
identities.
By relying on this narrow
conception of racial identity, unadorned by legal precedent, the district court
effectively imposed a heightened burden on Plaintiffs beyond what Title VII, §
1981, and the THRA require. Our circuit has never held that a plaintiff must
proffer evidence of a comparator’s racial self-identification or genetic
composition to survive judgment in a Title VII case. To the contrary, we have
routinely accepted, at summary judgment, plaintiff testimony of disparate,
race-based treatment grounded in experience and perception. . . .
The Court’s majority also found sufficient evidence of
disparate treatment to also support the claims of racially harassment.
“[F]acially 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.” . . . . Here,
given the alleged use of racial slurs by [the supervisor and manager], a
reasonable jury could infer that the accompanying (purportedly race-neutral)
verbal abuse by both individuals was, in fact, also racially motivated, without
regard to Plaintiffs’ testimony that non-African Americans received more
favorable treatment.
The Court also rejected the district court conclusion that
the evidence was insufficient to show a severe or pervasive ractially hostile
work environment.
Our governing precedent, however,
requires evaluation of the work environment as a whole, including the broader
context in which the terms “monkey” and “monkey ass” were allegedly used. . . . . As noted, facially neutral abusive
conduct, such as screaming, cursing, and threatening, “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.” . . . By refusing to consider the use of the slurs
in conjunction with the accompanying verbal abuse (or, for that matter, the
unfavorable employment-related treatment) when assessing severity and
pervasiveness, the district court relied on an incomplete picture of the
harassment that Plaintiffs allegedly experienced.
. . .
. . . our circuit has recognized that even a
single incident of racial harassment, including the use of an egregious racial
slur like the n-word, “may be so severe as to constitute a hostile work
environment.” . . . Like the n-word, the
term “monkey” is “odious” and “degrading and humiliating in the extreme” when
used as an insult against African Americans. . . . . That is particularly true in this
case, where [the plaintiffs] were purportedly called the term directly by their
supervisors. The utterance of a slur by a manager “greatly increase[s] its
severity,” and “harassment will be more severe if offensive comments were
directed at a plaintiff.”
. . . .
. .
. [The plaintiffs] testified that they
were directly called “monkey” and “monkey ass” by their supervisors on multiple
occasions over time. Plaintiffs have also proffered evidence that, at least
with respect to [one plaintiff], the term “monkey ass” was used in an overtly
threatening manner. For example, [he] testified that [his supervisor] once told
him, “you’re going to get your monkey A-S-S out there and do the job or . . .
I’m going to write you up.” . . . . Even
standing alone, the evidence of these race-specific and derogatory terms very
likely suffices to show severe or pervasive racial harassment.
We do not rely on the use of the
slurs alone, however, because our governing cases require consideration of the
totality of the circumstances in hostile work environment cases. . . . . As discussed, [the plaintiffs]
testified not only that they were directly called egregious, degrading, and
humiliating racial slurs by their supervisors on several occasions, but also
that they were subjected to sustained verbal use, in the form of threats,
demeaning criticism, cursing, and screaming, while non-African American TRR
drivers were spared from that same abuse. Plaintiffs also testified that they
were consistently forced to work longer hours, drive lengthier routes with
longer wait times, and use damaged trucks, unlike their non-African American
counterparts. And both testified that the harassment caused them significant
anxiety and diminished morale, which made it more difficult to drive on the
road.
Viewing the totality of the record
in the light most favorable to Plaintiffs, as we must, we conclude that a
“reasonable person would have found [their work environment] hostile [and]
abusive.” Id. at 309. In turn, a reasonable jury could find, from the totality
of the evidence, that [they] were subjected to recurring, severe, and
humiliating racial harassment that unreasonably interfered with their
employment.
The Court also found sufficient evidence of employer
vicarious liability because the employer failed to produce sufficient evidence
to support its affirmative defense.
While the employer points to the
fact that it gave [the plaintiffs] a copy of its Anti-Discrimination and
Harassment Policy, our caselaw makes clear that the existence and provision of
a harassment policy alone are insufficient to show “reasonable care to prevent
and correct promptly any racially harassing behavior.” . . . An employer must
also show that the policy was reasonable and “effective in practice.” . . . [The
employer] points to no evidence, and does not even attempt to argue, that it
had an effective policy. It makes no mention of the policy’s “requirements” on
supervisors or the “training regarding the policy”— both of which are baseline
requirements for establishing the existence of a reasonable harassment policy.
Id. at 349-50. The record also does not show that [the employer] took
reasonable care to promptly correct the alleged harassment. To the contrary,
Plaintiffs have testified that they placed [the employer] on notice of the
harassment by reporting it to management-level employees, and P[it] has
proffered no evidence that it acted to promptly correct the situation. On this
record, we cannot say that [the employer] “exercised reasonable care to prevent
and correct promptly any racially harassing behavior by its supervisor[s].”
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.
