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Are Certain Words Now Illegal Under Title VII?

On July 14, the Third Circuit issued its opinion in Castleberry v. STI Group, Case No. 16-3131 reversing the district court that had granted a motion to dismiss a hostile work environment claim. In the case, two African-American employees claimed they were terminated based on their race and that they were subjected to a racially hostile work environment. The hostile work environment claim consisted of a supervisor, on one occasion, saying to employees, including the two plaintiffs that if they "nigger-rigged" the fence, they would be fired. They also claim that there were racial comments on a sign-in sheet "on several occasions." The Circuit Court found that the single use of a racial slur by the supervisor was sufficient to create a hostile work environment, particularly when it was followed by a threat of termination. The court reasoned that the single use of the racially charged term was sufficiently extreme to be "severe" under the "severe or pervasive" standard, at least at the motion to dismiss stage.

This "one bad word is enough" standard is reflected in the EEOC's proposed harassment guidance from earlier this year. While the case was decided on a Motion to Dismiss and not summary judgment, it is enough to take note that the standard for what is "severe or pervasive" may be coming down and certain words are now de facto illegal under Title VII. Employers need to be vigilant, especially with supervisors, when it comes to what is appropriate language in the workplace. Because the Farragher affirmative defense is not available to employers in cases of a single incident hostile work environment claim, employers will be liable for any damages that arise from the use of such racial or sexual slurs in the workplace. So employers should beware, the old nursery rhyme no longer holds true, "sticks and stones may break my bones, but words can never hurt me;" a single inappropriate work, phrase, or joke may cost you a bundle.



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