Four Racial Slurs Made in Worker’s Presence Over a Year May Be Sufficient to Create Hostile Work Environment

Mack v. Town of Pinetop Lakeside - Ninth Circuit Court of Appeals

Facts:  Johnny Mack (“Mack”) worked for the Town of Pinetop Lakeside (“the Town”) in its town roads department.  Mack was the only African American employee in the department.  When Mack got a new boss and co-worker, Mack stated that over an approximate one year period, he heard his new boss and co-worker use the ‘n word’ three times and a racial slur aimed at Native Americans.  (Although the racial slurs were not directed at Mack, they were apparently made in his presence.)  Mack proceeded to sue the Town and other defendants and alleged harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964.  The district court granted summary judgment to the defendants as to Mack’s hostile work environment claim.  Mack subsequently appealed to the Ninth Circuit Court of Appeals.

Holding:  Note, this case brief only examines the hostile work environment portion of Mack’s claim in regard to the racial slurs made in his presence.

For a hostile work environment claimant to defeat a motion for summary judgment, it must be proven that a genuine issue of material fact exists as to whether (1) the claimant “was subjected to verbal or physical conduct of a racial nature,” (2) “the conduct was unwelcome,” and (3) the conduct “was sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive work environment.”  In this instance, only the third prong was in dispute.

The Court of Appeals noted that while there were apparently other racial slurs made, beyond the four Mack heard, the district court properly considered only the four racial slurs.  To have a valid cause of action, it followed that Mack must have actual knowledge of the hostile conduct for it to alter his workplace and create an abusive environment.

While the racial slurs apparently occurred over the course of a year, the Court recognized that three of the four racial slurs used in Mack’s presence contained a term that had previously been found to be “highly offensive and demeaning.”  Because this severely offensive language was used in the presence of an African American three times within a year, along with the other racial slur about Native Americans, a reasonable jury could conclude that Mack’s work environment was objectively and subjectively hostile.  Going one step further, the Court determined that it did not matter that the racial slurs were not aimed at Mack and instead “only” used in his presence.  Instead, prior caselaw had established that hostile conduct “need not be directly targeted at the plaintiff to be relevant to his...hostile work environment claim.”

Judgment:  The Ninth Circuit Court of Appeals reversed the district court’s decision and held that a reasonable jury could find that four racial slurs made in the presence of an African American employee over the course of a year could be sufficient to establish the employee’s hostile work environment claim.

The Takeaway:  This case is a good reminder that (1) racial slurs need not be directed at an employee to be actionable, (2) the timeframe over which racial slurs are made is not necessarily dispositive, and (3) certain racial slurs can be severe enough to potentially create a hostile work environment without any other conduct needed.  In this case, I think the Court of Appeals was correct to reverse the district court’s ruling.  While the Court of Appeals did not say that Mack’s hostile work environment claim was “correct”, the Court did recognize that a jury might find the evidence sufficient to have created a hostile work environment.  Thus, the granting of summary judgment against Mack’s hostile work environment claim was not proper and should instead be put before a jury to decide.

Date:  July 2, 2019

Opinion:  https://www.courtlistener.com/pdf/2019/07/02/johnny_mack_v._town_of_pinetop_lakeside.pdf