?Takeaway: In recent years, many courts have found that the single use of a racial epithet at work can create a racially hostile work environment. Yet, the 5th Circuit rejected a racial harassment claim about the use of a racial epithet when the employer promptly counseled the alleged harasser afterwards and the plaintiff could not show any further incidents of harassment.
?An employer that warned employees that any further use of racial epithets at work would result in termination stopped the use of such reprehensible language and was not liable for racial harassment, according to the 5th U.S. Circuit Court of Appeals.
The plaintiff was a sales representative for Lincare, a medical equipment and services company. She began working there in 2015 and transferred to the Austin, Texas, office in December 2018. Her primary responsibilities were making sales calls and interfacing with hospitals.
The plaintiff was one of two sales representatives who worked with three customer service representatives (CSRs) in the Austin office. They reported to the manager of the Austin office, who in turn reported to the area manager. Lincare’s HR representative worked out of the company’s Florida headquarters. The plaintiff was the only Black employee among these eight people.
The plaintiff alleged that once she moved to the Austin office, she was subjected to racial harassment. First, she alleged that several racially insensitive comments were made to her between December 2018 and June 2019. For example, in January 2019, the area manager told her at a sales meeting that she should change her hairstyle and manner of dress. The area manager allegedly justified giving that advice because her daughter-in-law was Black.
The plaintiff also alleged that on another occasion, she was told that a CSR had called her “loud and Black” and “ghetto” behind her back. She further alleged that another CSR repeatedly used a racial epithet in the office. When asked to give examples, she recalled two specific instances. The CSR admitted that she used the word, but only outside of work with close friends.
Second, the plaintiff asserted that she was called the racial epithet in a June 20, 2019, meeting. The Austin manager called the meeting to discuss an office disagreement. As tensions bubbled over, the plaintiff confronted a CSR about her usage of the racial epithet. She told the CSR not to use the slur, to which the CSR responded angrily that she would continue to use it, at least outside of work. According to the plaintiff, the CSR then used the racial epithet again, in addition to calling her a derogatory term for women. The plaintiff claimed that the manager was present and did nothing but tell everyone to treat each other with respect.
Lincare agreed that a CSR called the plaintiff the derogatory term for women, but it maintained that she did not call the plaintiff the racial epithet. The company also claimed that the manager promptly reported the incident to HR, which investigated immediately. Within five days, HR sent written warnings to the CSRs who allegedly used the racial slurs, explaining that they would be fired if they used similar language again. The manager said at the office’s next meeting that no foul language was to be used at work.
After the June 2019 meeting and the subsequent warnings, Lincare claimed that no additional incidents of racial harassment were reported concerning the CSRs. However, the plaintiff claimed that a week after the final warnings, a CSR called her “Aunt Jemima.” Lincare presented evidence that this comment occurred before the CSRs received the final warnings.
The plaintiff claimed that the two CSRs punished her for speaking out by refusing to work with her. She also claimed that Lincare put her on a formal action plan, making her one infraction away from being fired. Lincare denied that she was ever placed on a formal action plan.
The plaintiff left Lincare for another job in August 2019. Upon her exit, she told HR that she resigned because of perceived racial harassment and discrimination. She then sued Lincare under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 1981 and Texas anti-discrimination law, as well as for breach of contract. Lincare moved for summary judgment, which the district court granted. The plaintiff then appealed to the 5th Circuit.
The appeals court did not decide whether the racist language in the office created a hostile work environment. Instead, it found that Lincare promptly initiated an investigation, interviewed the employees involved and issued final warnings to the alleged harassers. Because the evidence showed these actions stopped the racial epithets, the company’s response shielded it from potential liability. The court further found insufficient evidence to establish retaliation.
The 5th Circuit thus upheld the dismissal of the case.
Hudson v. Lincare Inc., 5th Cir., No. 22-50149 (Jan. 18, 2023).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.
