One Racial Slur Constitutes Harassment?

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May 4, 2017

A recent decision from the Second Circuit Court of Appeals in New York has again opened the door to questions about hostile work environment and racial harassment.  The particular question addressed in this court decision was whether one racial epitaph (use of the “n-word”) would support a claim for racial harassment and the creation of a hostile work environment.  The Court did not make a final ruling but rather found the lower Federal District Court had improperly interpreted a 1997 decision and acknowledged that the use of a racial slur could form the basis for a claim of racial harassment and a hostile work environment.  This is not a definitive ruling but rather an acknowledgement that this area of the law is unclear and is open to further interpretation.  The Court did acknowledge that one utterance of a racial slur could be sufficient to defeat a motion for summary judgment against the employee meaning the case would be presented to a jury or judge to determine whether or not a hostile work environment existed.

Wisconsin employers have a somewhat different landscape.  It is clear a single act of sexual harassment could form the basis for a claim of sexual discrimination under the Wisconsin Fair Employment Act.  The definition of sexual harassment in Wisconsin acknowledges a single act could form the basis for a claim of harassment.  This definition has not been applied specifically to a claim of racial harassment or hostile work environment based upon anti-racial discrimination but we can see how the courts would find the Wisconsin law gives that type of protection whether the claim of hostile work environment is based upon sex, race, national origin or even age.  Wisconsin employers can avoid being a test case on this issue by doing proper training of employees and supervisors to ensure it is clear this type of behavior is not appropriate in the workplace.

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