The disastrous consequences of the N-word in the workplace. Just ask Dr. Laura!

Okay, this arti­cle has noth­ing to do with Dr. Lau­ra Sch­lessinger and her “rant” in which she used the N-word repeat­ed­ly on her radio pro­gram when respond­ing to an African-Amer­i­can caller. But the ensu­ing con­tro­ver­sy (see arti­cles for and against Dr. Lau­ra), and her deci­sion to end her long-run­ning radio pro­gram, high­light the extra­or­di­nary sig­nif­i­cance of the N-word term in Amer­i­can soci­ety.

The West Vir­ginia Supreme Court recent­ly dealt with the N-word in a case that high­lights the great risks for employ­ers when that word enters the work­place.

In PAR Elec­tri­cal Con­trac­tors, Inc. v. Bev­elle , — W. Va. –, — S.E.2d –, 2010 WL 2244096 (June 3, 2010) (per curi­am), the West Vir­ginia Supreme Court dealt with a claim of a racial­ly based hos­tile work envi­ron­ment under the West Vir­ginia Human Rights Act, and con­clud­ed that the West Vir­ginia Human Rights Com­mis­sion was jus­ti­fied in find­ing for the employ­ee. The deci­sion was unan­i­mous. Click here for the WV Human Rights Com­mis­sion’s deci­sion which was affirmed by the WV Supreme Court.

A Sin­gle Day, With the N-Word Again and Again

PAR Elec­tri­cal was build­ing “giant tow­ers” for a high volt­age elec­tri­cal trans­mis­sion line. Richard Wayne Bev­elle was hired by PAR Elec­tri­cal on March 22, 2005, and, after work­ing as a “ground­man” assem­bling the tow­er bases, was assigned to load heli­copters with parts to con­struct the tow­ers (this heli­copter job was described as a “gravy job” by the Human Rights Com­mis­sion). Mr. Bev­elle is African-Amer­i­can.

On Sep­tem­ber 19, 2005, while work­ing at the heli­copter land­ing site, Mr. Bev­elle was work­ing with two white boss­es. The WV Supreme Court describes racist abuse the two boss­es vis­it­ed on Mr. Bev­elle:

three peo­ple were talk­ing and work­ing at a heli­copter land­ing site: the appellee, Mr. Bev­elle; Mr. Bevelle’s super­vi­sor, Don Sines; and anoth­er PAR fore­man, Kevin Tabor. Mr. Bev­elle was the only African-Amer­i­can among the three. In the course of the con­ver­sa­tion, Mr. Tabor told Mr. Bev­elle, “If I was your boss, I would fire you for not join­ing the KKK.” Mr. Sines then said to Mr. Tabor, “Well, he can’t join the KKK, he’s already a mem­ber, prob­a­bly, of the NAACP.” Mr. Bev­elle respond­ed, “I don’t play that,” and walked a short dis­tance away.

Mr. Tabor and Mr. Sines con­tin­ued to talk. In their con­ver­sa­tion, the word “n* * * * * ” was used mul­ti­ple times. After sev­er­al min­utes of dis­cus­sion, Mr. Tabor walked over to appellee Bev­elle and, employ­ing what an admin­is­tra­tive law judge lat­er termed “offen­sive elab­o­ra­tions,” explained that Mr. Bev­elle had mis­un­der­stood what Mr. Tabor had meant. Mr. Tabor explained that “there’s all kinds of n* * * * *s. There’s white n* * * * *s, too.” Mr. Bev­elle respond­ed, “No, there’s not.”

Appellee Bev­elle attempt­ed to tell Mr. Tabor that he evi­dent­ly didn’t know what the “n-word” meant, but Mr. Tabor explained: “No, no. Any­body, if you’re white and you walk around on drugs, you can fig­ure that’s a n* * * * * to me.” Mr. Bev­elle again said, “I don’t play that.” Mr. Tabor respond­ed, “Well, I don’t clas­si­fy you as a n* * * * * because you work for a liv­ing.” Mr. Bev­elle stared at Mr. Tabor for a moment, then walked away and got in his truck.

 

Mr. Bev­elle Com­plains, and then PAR Elec­tri­cal Reas­signs Him

The next morn­ing, Mr. Bev­elle com­plained about the racist remarks the day before to the company’s safe­ty man­ag­er. The safe­ty man­ag­er got Don Sines, Mr. Bevelle’s boss and one of the per­sons mak­ing the racist behav­ior, involved in the con­ver­sa­tion. The safe­ty man­ag­er  then told Mr. Bev­elle that the safe­ty man­ag­er would look into the inci­dent, and also told Mr. Bev­elle that the lan­guage the two boss­es used the day before was “total­ly inap­pro­pri­ate.”

After mak­ing the com­plaint to the safe­ty man­ag­er, Mr. Bev­elle was get­ting into his truck to return to the heli­copter work site, and was stopped by his boss Don Sines.  Mr. Sines told Mr. Bev­elle that Mr. Bev­elle was “being reas­signed imme­di­ate­ly”, to oth­er duties, where he would be work­ing at the base of the 150–200 feet tow­ers as the oth­er employ­ees climbed up the tow­ers and did con­struc­tion work. One of Mr. Bevelle’s tasks would be to “pick up” tools, bolts, and parts dropped by the work­ers high in the tow­ers.

Mr. Bev­elle lat­er tes­ti­fied that this assign­ment made him fear for his safe­ty:

Mr. Bev­elle tes­ti­fied that he was fear­ful of his new assign­ment, fear­ful that he might be “acci­den­tall
y” hurt by an item dropped by a fel­low work­er-all of whom were appar­ent­ly white-after report­ing Mr. Tabor’s racial remarks. Mr. Bev­elle knew that the work­ers on the tow­ers had been assigned to work with Mr. Tabor in the past on oth­er jobs. They had trav­eled with Mr. Tabor, lived near Mr. Tabor, and gen­er­al­ly knew him far bet­ter than they knew Mr. Bev­elle. Mr. Bev­elle also knew that tools on the job site weighed as much as six or sev­en pounds, and items like bolts were six inch­es long and two inch­es in cir­cum­fer­ence.

Mr. Bev­elle had not asked for this reas­sign­ment, and no one explained to him the rea­son for the reas­sign­ment. Appar­ent­ly the two white boss­es mak­ing the racist state­ments con­tin­ued to work their same assign­ments, and Mr. Bevelle’s job on the heli­copter  land­ing pad was giv­en to some­one else.

Then, dur­ing a safe­ty meet­ing involv­ing about 100 employ­ees (and Mr. Bev­elle was the only African-Amer­i­can), PAR Elec­tri­cal told the work­ers that “racial com­ments would not be tol­er­at­ed”. Mr. Bev­elle, based on this meet­ing, believed that all of the oth­er PAR Elec­tri­cal employ­ees knew that Mr. Bev­elle had com­plained to man­age­ment about dis­crim­i­na­tion, and he believed that all of the oth­er employ­ees were white.

Short­ly after that meet­ing, Mr. Bev­elle quit PAR Elec­tri­cal.

The Human Rights Commission’s Deci­sion

Mr. Bev­elle then filed a charge of dis­crim­i­na­tion with the West Vir­ginia Human Rights Com­mis­sion. The charge pro­ceed­ed to a tri­al (“hear­ing”, in HRC’s par­lance) before an admin­is­tra­tive law judge (“ALJ”). The ALJ ruled for Mr. Bev­elle and the HRC entered an order adopt­ing the ALJ’s find­ings.

The WV Human Rights Com­mis­sion reached the fol­low­ing con­clu­sions in hold­ing that PAR Elec­tri­cal vio­lat­ed Mr. Bevelle’s rights:

The admin­is­tra­tive law judge award­ed Mr. Bev­elle the fol­low­ing com­pen­sa­tion:

Appeal

PAR Elec­tri­cal then appealed to Cir­cuit Court In Kanawha Coun­ty, and the Cir­cuit Court affirmed the HRC’s deci­sion.

PAR Elec­tri­cal then appealed to the WV Supreme Court, which also affirmed the HRC’s deci­sion (click here for PAR Electrical’s appeal brief; and click here for Mr. Bevelle’s response brief); and click here for PAR Electrical’s reply brief).

The WV Supreme Court in its opin­ion addressed only two issues that were raised in the appeal: (1) whether the racist behav­ior was severe enough to cre­ate a hos­tile work envi­ron­ment, and (2) whether PAR Elec­tri­cal took prompt and effec­tive reme­di­al action after Mr. Bev­elle com­plained.

Was the Racism Bad Enough to Cre­ate a Hos­tile Work Envi­ron­ment?

PAR Elec­tri­cal argued on appeal that there was only a “sin­gle inci­dent” of racist lan­guage, and that a “sin­gle inci­dent” was insuf­fi­cient to cre­ate a hos­tile work envi­ron­ment. The WV Supreme Court dif­fer­en­ti­at­ed between two sce­nar­ios in address­ing PAR’s argu­ment:

  • There could be an inci­dent involv­ing racist lan­guage that was “acci­den­tal” or “in frus­tra­tion”. That would be a mit­i­gat­ing fac­tor in favor of the employ­er in address­ing whether there was a hos­tile work envi­ron­ment, but that was not the case for PAR Elec­tri­cal.
  • There could be a “repeat­ed” and “delib­er­ate” use of racist lan­guage, and that would be an aggra­vat­ing con­sid­er­a­tion. And that was what hap­pened with PAR Elec­tri­cal.

In describ­ing why the facts fit that “repeat­ed” and “delib­er­ate sce­nario”, the Court focused on the com­ment about fir­ing Mr. Bev­elle for not join­ing the KKK, Mr. Bev­elle “dis­en­gag­ing” from the con­ver­sa­tion by walk­ing away, the racist com­ments con­tin­ued loud enough for Mr. Bev­elle to hear, Mr. Bev­elle then com­plained to the two super­vi­sors involved in the con­ver­sa­tion, and they then offen­sive­ly explained their views on the use of the “N-word” (described in detail above).

The Court dis­cussed lan­guage in a pri­or deci­sion, Fair­mont Spe­cial­ty Ser­vices v. WV Human Rights Com­mis­sion, 206 W. Va. 86, 96 n.9, 522 S.E.2d 180, 190 n.9 (1999), that, “as a gen­er­al rule”, “more than a few iso­lat­ed inci­dents are required” to cre­ate a hos­tile work envi­ron­ment claim. The Court  essen­tial­ly described two tiers of offen­sive con­duct, one involv­ing lan­guage “intend­ed to den­i­grate” a group (such as the N-word and the C-word), and ”more sub­tle” man­i­fes­ta­tions of prej­u­dice:

Con­duct such as use of the “N” word to describe an African-Amer­i­can, the “C” word to describe women, the terms “Sic,” “W.P.” or “Jap” to describe those of oth­er ances­tral her­itages, or oth­er racial, sex­u­al or eth­nic pseu­do­nym, intend­ed to den­i­grate oth­ers, can­not be tol­er­at­ed in the work­place. They are the type of out­ra­geous dis­crim­i­na­to­ry con­duct that may be con­sid­ered to be of an aggra­vat­ed nature such that the thresh­old for it to be action­able is much low­er than more sub­tle forms of dis­crim­i­na­tion which cumu­la­tive­ly cause con­duct to be action­able under the Human Rights Act.

In essence, the more offen­sive behav­ior (“out­ra­geous­ly dis­crim­i­na­to­ry” con­duct) cre­ates a “much low­er thresh­old” for the required fre­quen­cy of the con­duct, where­as the “more sub­tle” behav­ior will have to be fre­quent enough so that it accu­mu­lates into an “action­able” hos­tile work envi­ron­ment.

The Court then focused on the dif­fer­ence between the “in frus­tra­tion” and “delib­er­ate” sce­nar­ios dis­cussed above:

  • In Erps v. WV Human Rights Com­mis­sion, 234 W. Va. 126, 680 S.E.2d 371 (2009), the WV Supreme Court threw out a race dis­crim­i­na­tion judg­ment in favor of the employ­ee because a co-worker’s sin­gle racist state­ment (includ­ing the N-word) was “yelled in frus­tra­tion after some provo­ca­tion” when the African-Amer­i­can employ­ee was “chid­ing” the white co-work­er about the qual­i­ty of his work.
  • For Mr. Bev­elle and PAR Elec­tri­cal, the racist remarks were “repeat­ed and delib­er­ate”, were made “with­out provo­ca­tion”, and the state­ments were made by man­age­ment.

Thus, racial remarks will be viewed as much more aggra­vat­ed on the issue of whether a hos­tile work envi­ron­ment is cre­at­ed if (a) they were “delib­er­ate” (as opposed to in “frus­tra­tion” or in response to “provo­ca­tion”), and (b) they were made by man­age­ment (as opposed to co-work­ers with no man­age­r­i­al pow­er).

So the WV Supreme Court con­clud­ed that the the HRC’s find­ing of a hos­tile work envi­ron­ment was sup­port­ed by the evi­dence.

Was PAR Elec­tri­cals’ Response Prompt and Effec­tive?

PAR Elec­tri­cal argued that, even if a hos­tile work envi­ron­ment was cre­at­ed, it was pro­tect­ed from lia­bil­i­ty because it took “swift and deci­sive action to elim­i­nate the dis­crim­i­na­to­ry con­duct”. The WV Supreme Court exam­ined that argu­ment with 2 pre­lim­i­nary state­ments:

  • The “aggra­vat­ed nature” of the dis­crim­i­na­to­ry con­duct, along with the “fre­quen­cy and sever­i­ty”, are to be con­sid­ered in “assess­ing the effi­ca­cy of the employer’s response”.
  • For instances of “aggra­vat­ed dis­crim­i­na­to­ry con­duct in the work­place”, where the state­ments “clear­ly den­i­grate anoth­er human being on the basis of race, ances­try, gen­der, or oth­er unlaw­ful clas­si­fi­ca­tion”, the employ­er “must take swift and deci­sive action to elim­i­nate such con­duct from the work­place”.

That analy­sis sug­gests to me that, where the dis­crim­i­na­to­ry con­duct is “aggra­vat­ed”, the employ­er must take “swift and deci­sive” action that comes close to guar­an­tee­ing that the dis­crim­i­na­to­ry con­duct will stop.

Remem­ber, the safe­ty man­ag­er at PAR Elec­tri­cal, after lis­ten­ing to Mr. Bevelle’s com­plaint, told Mr. Bev­elle that the racist con­duct was “total­ly inap­pro­pri­ate”, and safe­ty man­ag­er then told the entire work­force of about 100 peo­ple at a safe­ty meet­ing that “racial com­ments would not be tol­er­at­ed”.

Nev­er­the­less, the WV Supreme Court was not impressed with PAR Electrical’s response. Here are the key points in its analy­sis:

  • The only “swift and deci­sive action” tak­en by PAR Elec­tri­cal was to “trans­fer … Bev­elle from a job that he had per­formed well to a much more dan­ger­ous work­site”.
  • There was no evi­dence that the two super­vi­so­ry employ­ees guilty of the racist remarks  “were ever sanc­tioned in any way for their con­duct”.
  • The Supreme Court reject­ed PAR Electrical’s  argu­ments (a) that the super­vi­sor Mr. Tabor had such “spe­cial­ized” skills that he was required to be near the heli­copter pad (in oth­er words, that he could not be reas­signed), and (b) that Mr. Bev­elle was mere­ly “an entry-lev­el ground­man” who would have like­ly been reas­signed to a dif­fer­ent posi­tion any­way.

Giv­en the “aggra­vat­ed nature of the dis­crim­i­na­to­ry con­duct”, The WV Supreme Court held that it was fair for the HRC to con­clude that PAR Elec­tri­cal failed to take “swift and deci­sive action to elim­i­nate such con­duct from the work­place.”

Con­struc­tive Dis­charge

The WV Human Rights Com­mis­sion’s find­ing of con­struc­tive dis­charge was not addressed in the WV Supreme Court’s deci­sion, but it worth look­ing at the HRC’s analy­sis, because con­struc­tive dis­charge alle­ga­tions fre­quent­ly arise in dis­crim­i­na­tion claims, espe­cial­ly in those involv­ing a hos­tile work envi­ron­ment.

Con­struc­tive dis­charge” is a legal prin­ci­ple that aris­es in a set­ting where the plain­tiff-employ­ee resigned from his employ­ment, but claims to have been forced to resign because of mis­treat­ment from the employ­er. The sig­nif­i­cance of the doc­trine of con­struc­tive dis­charge is this:

  • If an employ­ee resigns and the court con­cludes the res­ig­na­tion was vol­un­tary and not a result of con­struc­tive dis­charge, then the employ­ee can­not com­plain about his depar­ture as being a con­se­quence of any pri­or dis­crim­i­na­to­ry con­duct by the employ­er. Fur­ther­more, the employ­ee can­not receive com­pen­sa­tion for any adverse finan­cial con­se­quences (such as lost pay and ben­e­fits) as a result of the vol­un­tary res­ig­na­tion.
  • If an employ­ee resigned and the court con­cludes that the employ­ee was con­struc­tive­ly dis­charged, then the employ­ee legal­ly is treat­ed as if he had been invol­un­tar­i­ly ter­mi­nat­ed. The employ­ee then is allowed to claim that the sep­a­ra­tion was a con­se­quence of the pri­or dis­crim­i­na­to­ry con­duct, and the employ­ee may receive com­pen­sa­tion for the adverse finan­cial con­se­quences fol­low­ing the sep­a­ra­tion. For pur­pos­es of all dam­age analy­sis, the law treats the con­struc­tive­ly dis­charged employ­ee as hav­ing been ter­mi­nat­ed.

So what does an employ­ee have to prove to estab­lish con­struc­tive dis­charge? The admin­is­tra­tive law judge applied analy­sis from the WV Supreme Court in Slack v. Kanawha Coun­ty Hous­ing and Rede­vel­op­ment Author­i­ty, 188 W. Va. 144, 423 S.E.2d 547 (1992), and the key analy­sis was:

  • The “plain­tiff must estab­lish that work­ing con­di­tions cre­at­ed by or known to the employ­er were so intol­er­a­ble that a rea­son­able per­son would be com­pelled to quit.” (empha­sis added)
  • How­ev­er, a plain­tiff does not need to prove that the “employer’s actions were tak­en with a spe­cif­ic intent to cause the plain­tiff to quit”. This rul­ing reject­ed the posi­tion of some fed­er­al courts, which was to require for con­struc­tive dis­charge proof that the employer’s actions which forced the employ­ee to quit were tak­en with the “spe­cif­ic intent” to get rid of the plain­tiff.
  • The plain­tiff must prove that the “intol­er­a­ble con­di­tions that cause the employ­ee to quit were cre­at­ed by the employ­er and were relat­ed to those facts that gave rise to the retal­ia­to­ry dis­charge.” (empha­sis added)

To a sig­nif­i­cant extent, the WV Human Rights Com­mis­sion’s find­ing of con­struc­tive dis­charge was based on Mr. Bevelle’s fear that the reas­signed posi­tion put him in sig­nif­i­cant per­son­al dan­ger, after Mr. Bev­elle had com­plained about racist behav­ior:

The Com­plainant had an objec­tive­ly rea­son­able fear that the trans­fer to his new job assign­ment placed him in undu­ly dan­ger­ous posi­tion of being mur­dered on the job site such that a rea­son­able man might deter­mine that he should not remain on the job under such cir­cum­stances. This fear is rea­son­able in light of the fol­low­ing; (1) the Respon­dent had retal­i­at­ed against him by mov­ing him to this more dan­ger­ous job imme­di­ate­ly fol­low­ing his com­plaint about racist remarks made about him, (2) the Respondent’s Fore­man, Mr. Tabor had ref­er­enced the KKK in con­text of Com­plainant not work­ing for him, (3) no unfa­vor­able sanc­tions were occa­sioned by Mr. Tabor as a result of his remarks, instead being reward­ed by the removal of Com­plainant from his pres­ence at the heli­copter land­ing site, and (4) any­one of the work­ers on the tow­er crew to which he was assigned could drop dead­ly objects upon him. Com­plainant has estab­lished that he was con­struc­tive­ly dis­charged from employ­ment with Respon­dent in retal­i­a­tion for com­plain­ing about Respondent’s super­vi­so­ry employ­ee mak­ing racist com­ments.

 

Lessons

There are a lot of lessons from this deci­sion:

  • A sin­gle episode of racist behav­ior (or of sex­u­al harass­ment), dur­ing a sin­gle work shift, can cre­ate a hos­tile work envi­ron­ment, if it is suf­fi­cient­ly aggra­vat­ed.
  • Where there was “repeat­ed” and “delib­er­ate” use of racist lan­guage, that will be an “aggra­vat­ing” fac­tor in assess­ing whether there is an hos­tile work envi­ron­ment (as opposed to where the dis­crim­i­na­to­ry com­ments are “acci­den­tal” or “in frus­tra­tion”).
  • Lan­guage such as use of the “N” word to describe an African-Amer­i­can, the "C” word to describe women, or oth­er racial, sex­u­al or eth­nic pseu­do­nym “intend­ed to den­i­grate oth­ers” will be more like­ly to cre­ate a hos­tile work envi­ron­ment even with a small­er num­ber of instances; where­as more “sub­tle” lan­guage will have to “accu­mu­late” to cre­ate a hos­tile work envi­ron­ment. In oth­er words, for the overt­ly “den­i­grat­ing” lan­guage, the “thresh­old for it to be action­able is much low­er” (for fre­quen­cy) than “more sub­tle forms of dis­crim­i­na­tion”.
  • The racial remarks will be con­sid­ered more “aggra­vat­ed” if they were made by per­sons with man­age­r­i­al author­i­ty over the plain­tiff.
  • The “aggra­vat­ed nature” of the dis­crim­i­na­to­ry con­duct, along with the “fre­quen­cy and sever­i­ty”, are to be con­sid­ered in “assess­ing the effi­ca­cy of the employer’s response”.
  • For instances of “aggra­vat­ed dis­crim­i­na­to­ry con­duct in the work­place”, where the state­ments “clear­ly den­i­grate anoth­er human being on the basis of race, ances­try, gen­der, or oth­er unlaw­ful clas­si­fi­ca­tion”, the employ­er “must take swift and deci­sive action to elim­i­nate such con­duct from the work­place”.
  • Trans­fer­ring the plain­tiff to a less attrac­tive and even dan­ger­ous job after the com­plaint of dis­crim­i­na­tion will like­ly be viewed as inap­pro­pri­ate reme­di­al action.
  • Where the employ­ees engag­ing in the dis­crim­i­na­to­ry behav­ior are not dis­ci­plined, espe­cial­ly where their con­duct was “aggra­vat­ed”, then the reme­di­al action will more like­ly be viewed as inef­fec­tive.
  • Espe­cial­ly where the dis­crim­i­na­to­ry con­duct was “aggra­vat­ed”, the fact that the employ­er told the plain­tiff and oth­er employ­ees that the dis­crim­i­na­to­ry con­duct will not be tol­er­at­ed is not like­ly to pro­tect the employ­er from lia­bil­i­ty, where (a) no dis­ci­pline is applied to the wrong­do­ers and (b) the plain­tiff is trans­ferred to a less attrac­tive or dan­ger­ous posi­tion.
  • Mr. Bev­elle was jus­ti­fied in resign­ing, and would be treat­ed as con­struc­tive­ly dis­charged, even though he had just recent­ly com­plained and even though the employ­er was still in the process of address­ing his com­plaint.

These last two items are per­haps the most sig­nif­i­cant les­son from the Bev­elle case. Remem­ber, the safe­ty man­ag­er did the right thing: he told Mr. Bev­elle that the racist behav­ior about which Mr. Bev­elle com­plained would not be tol­er­at­ed, and he told the entire work force on duty that dis­crim­i­na­to­ry con­duct would not be tol­er­at­ed. That was one chan­nel of response from the employ­er. But the oth­er chan­nel of response was by the super­vi­sor who imme­di­ate­ly after Mr. Bevelle’s com­plaint reas­signed Mr. Bev­elle to a more dan­ger­ous posi­tion. Employ­ers in this sit­u­a­tion, in essence, have to con­trol both chan­nels of response in con­nec­tion with a com­plaint of dis­crim­i­na­tion. Sim­ply say­ing the right thing (which is what the safe­ty man­ag­er did) does not avoid lia­bil­i­ty where the employ­er did the wrong thing (reas­signed Mr. Bev­elle to a dan­ger­ous posi­tion).

Follow me:

Drew M. Capuder

Publisher of Drew Capuder's Employment Law Blog. Lawyer with more than 29 years experience, focusing on employment law, commercial litigation, and mediation. Extensive trial and appellate experience in state and federal courts. Call Drew at 304-333-5261
Fol­low me:

One thought on “The disastrous consequences of the N-word in the workplace. Just ask Dr. Laura!”

Leave a Reply