Usually, once is not enough, at least in the hostile work environment context. Unless, as the court found in Ronnie L. Outlaw v. SBH Services, Inc., it is.

Typically, a single incident of harassment – especially by a co-worker – is not sufficient for a hostile work environment claim to survive summary judgment and be heard by a jury. Most of the time, a viable hostile environment claim involves a series of harassing incidents based on membership in a protected class that were severe or pervasive enough to alter the conditions of the employee’s employment. A single, isolated incident usually does not meet this “severe or pervasive” standard.

In its February 19, 2019, opinion, however, the U.S. District Court for the Middle District of Tennessee did not apply this general rule and instead held that Outlaw’s single incident of harassment was sufficient to proceed to a jury.

Facts of the Case

Outlaw, an African-American, and Alex Cruz, a Hispanic, worked together on a construction site. According to the opinion, Outlaw witnessed Cruz performing work in an unsafe manner, and he attempted to correct it. In response, Outlaw claimed that Cruz “grabbed him, pushed him, and said ‘[y]ou punk ass ni—er’.” Outlaw’s employer, SBH Services, admitted Cruz used the “n-word,” but claims that Outlaw was confrontational and called Cruz a “motherf—er.” SBH Services argued “[i]n the Hispanic culture it is extremely offensive to call someone a ‘Motherf—er’ or ‘Son of a B—h’ because mothers are revered and the terms are often taken literally.”

After the incident, a construction company that was partnering with SBH Services on the project launched an investigation. During the investigation, Cruz admitted to using the slur and assaulting Outlaw. Cruz claimed Outlaw initiated the dispute by criticizing his work performance and calling him a “stubborn motherf—er.” Cruz was initially suspended for admitting he assaulted Outlaw.

Following the investigation, the investigators asked Outlaw numerous times whether he could ever work with Cruz again. According to two of the investigators, they believed Cruz and Outlaw were equally at fault and deserved the same punishment. As a result, the investigators allowed Outlaw the choice to either work with Cruz or “suffer his same fate.” Outlaw refused to work with Cruz again. He claims it was made clear to him that he could either work with Cruz or be terminated, so he quit. For his part, Cruz was terminated (apparently, although the opinion did not make it 100 percent clear, because Outlaw was not returning to work).

Outlaw sued SBH Services for race discrimination, retaliation, and hostile work environment. Although the court granted SBH Services summary judgment on Outlaw’s race discrimination and retaliation claims, not so his hostile work environment claim. In denying summary judgment, the court held that although this was only one incident of harassment, a “reasonable jury could consider [it] severe enough to constitute a racially-hostile work environment:”

“It is undisputed that Plaintiff, while on the job, was assaulted and called a vile racial slur by a fellow SBH employee. This event distally precipitated Plaintiff being fired for refusing to agree to work with the man who attacked him . . . .The record thus contains evidence of a single event, created by an SBH employee, that a reasonable jury could consider severe enough to constitute a racially-hostile work environment.”

Now What?

If the parties do not settle the case, it will now proceed to a jury. This case presents some takeaways for employers:

• A single incident of alleged harassment – especially involving the use of the “n-word” – may be sufficient for a hostile work environment claim to survive summary judgment in the Sixth Circuit (which includes Tennessee, Kentucky, Ohio, and Michigan).
• The court apparently felt the investigators made a mistake in equating the use of a vile racial slur combined with an assault to calling another employee a “motherf—-r.” The decision set up a situation in which Outlaw and Cruz had to either return to work together or both be fired. In the circumstances outlined by the court (which are viewed in the light most favorable to the plaintiff), the company may have been better served by administering different discipline to the two employees – termination for Cruz (who assaulted Outlaw and used the racial epithet) and lesser discipline for Outlaw (who apparently only used the confrontational language). That may have prevented a lawsuit.
• Employers should be wary of terminating an employee because of an incident in which the employee was called a racial slur.

Although hostile work environment claims involving a single incident are oftentimes not sufficient to survive summary judgment, the combination of the admitted use of a racial slur plus the loss of a job directly related to the same incident made Outlaw’s case good enough to get to a jury. Now the employer will be left with a Hobbesian choice of its own – pay a settlement or leave its fate in the hands of the strangers in the jury box.