In recent years, a number of Federal Appellate Courts have issued opinions finding that the single use of a racial slur would be sufficient to constitute a hostile and offensive working environment based on race. On August 21, 2019, the Seventh Circuit Court of Appeals reached the opposite conclusion in concluding that the single alleged use of the “N Word” by a Supervisor was not enough to show racial harassment given the overall work scenario of the Plaintiff.

In the case of Smith v. Illinois Department of Transportation, (No. 18-2948; August 21, 2019)the Plaintiff, Terry L. Smith, was disciplined and eventually terminated for poor work performance that included numerous safety violations during his six (6) month probationary period. While he was employed, Mr. Smith, made numerous internal complaints about harsh and unfair treatment by his Supervisors, some of them raising allegations of racial discrimination, including a claim that one of his Supervisors (Lloyd Colbert, African American) had a very angry conversation with Smith that included his (Colbert) calling Smith a “stupid A — N—–” a few weeks before he was terminated.

The Seventh Circuit affirmed the Summary Judgment issued by District Court Judge Edmond E. Chang in favor of the Illinois Department of Transportation and noted that a large majority of the Plaintiff’s complaints about harassment involved Supervisors conduct that did not relate to race. In fact, the Seventh Circuit concluded that the alleged use of the “N-Word” near the end of his employment did not affect his overall work experience at work nor change the fact that his discharge was related to “poor performance”. In fact, termination proceedings against Smith had been initiated two (2) weeks prior to Colbert’s comment and no evidence was presented to substantiate that the racial slur changed Smith’s work experience in the Department. It also should go as noted that the Supervisor who made the alleged “N-Word” comment was also an African American which may have influenced the Court’s view of the impact of this comment on Smith.

The clear path of other Circuits in finding that the single use of racial slur would constitute racial harassment at least now seems to run contrary to the Seventh Circuit opinion. The Seventh Circuit opinion may give employers some support in the argument that racial harassment requires more proof of severe and pervasive conduct that directly affects the terms and conditions of the Plaintiff’s employment rather than a single event standing alone, but there are certainly a number of Appellate Courts in Federal System that believe that a “single use of a racial slur” is sufficient to support a finding of racial discrimination.

Questions? Contact attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com