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:

• PAR Elec­tri­cal cre­ated a hos­tile work envi­ron­ment, based on race.
• PAR Elec­tri­cal retal­i­ated against Mr. Bev­elle by reas­sign­ing him to a more dan­ger­ous and less desir­able job duty.
• Mr. Bev­elle was con­struc­tively dis­charged as a result of the dete­ri­o­ra­tion of his work environment.
• PAR Elec­tri­cal failed to take prompt and effec­tive reme­dial action to stop the dis­crim­i­na­tion once PAR Elec­tri­cal received Mr. Bevelle’s complaint.

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

• Back pay: $31,168.79.
• Emo­tional dis­tress: $5,000 (under applic­a­ble prece­dent, the max­i­mum that can be awarded by the Human Rights Com­mis­sion for emo­tional dis­tress is $5,000).
• Attorney’s fees and expenses:  $14,729.77.

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).