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).

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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
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