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 , 225 W. Va. 624, 695 S.E.2d 854, 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).

Drew M. Capuder
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