The Employer's Legal Resource: Analysis of Harassment Claim Should Be Effect of Race-Based Comments on Employee's Working Environment, Not Intent of Speaker
In Lounds v. Lincare, Inc., the Tenth Circuit held the focus of analyzing hostile environment claims should be the discriminatory effect of race-based comments on the employee's cumulative working environment rather than the non-offensive intent of the individual making the comments.
In September 2011, Shawron Lounds was hired by Lincare -- a nationwide at-home medical services provider -- as a customer service representative in Wichita, Kansas. Of the approximately 20 employees in Lincare's Wichita facility, Lounds was the only African-American. In April 2012, Lounds received discipline for excessive absenteeism (specifically, 16 unscheduled absences since she was hired) and was counseled that any future absences could not be reported via text message under the company's rules. Despite this counseling, Lounds' frequent absences continued, as did her practice of reporting them to her supervisor via text message, and Lounds was verbally disciplined again in June and received a final written warning in July 2012. Lincare ultimately terminated Lounds' employment in September 2012 due to her "ongoing, excessive absenteeism" after she missed an additional seven days since the issuance of her final warning. Lincare noted that its policy allows first year employees five vacation days, but Lounds took 34 -- over 20 of which were unscheduled.
Meanwhile, Lounds claimed that she suffered a discriminatory hostile work environment on the basis of various racial comments from her supervisor and several coworkers during her year-long employment. Suzanne Kraft, the facility manager and Lounds' direct supervisor, allegedly made the following comments that Lounds considered offensive: (1) referring to Lounds as or asking Lounds if her name was Shaquita, Shaniqua, Sha-nea-nea, or Shanay; (2) telling Lounds to "give attitude" and "get ghetto" with a belligerent customer that Kraft commented whose "name sounded black" and "by the sounds of his voice she imagined that he was a big African American man"; (3) asking the only male coworker in attendance at a meeting if he "felt like a minority"; (4) directing employees to address Lincare's vice president by saying "Yes Massa" on his upcoming visit to the Wichita office; (5) asking Lounds why African-American parents choose names like Roshonda for their children; (6) saying that she did not want to hire a black male job applicant because "he looked like a convict"; (7) occasionally saying "I's be getting" or "You's be getting" while looking at Lounds and laughing; (8) asking Lounds if she spoke Ebonics and ever consulted the "urban dictionary"; (9) noting that she had six African-American cousins when she apologized to Lounds for various remarks; (10) making comments to Lounds about missing checks; and (11) asking Lounds if "they call black people coons."
Additionally, one specific coworker of Lounds, Kevin Kunz, also made several offensive comments. In one instance, Lounds overheard several employees discussing a news story involving an African-American man who had recently killed his wife, during which conversation Kunz stated that "we need to bring back lynching, because we have enough trees" and then attempted to clarify that he was "not racist" and approached Lounds to tell her he was "not trying to offend" her and "it's not like [he] said 'let's go down to...the Black Neighborhood and drag every black person with a noose, tie them to a truck, and drag them after hanging them." On a second occurrence (at an office pizza lunch), Kunz kept saying things like "I never go into the ghetto, the hood has gangsters" and that there were "a lot of minorities there...in the ghetto and it's dirty, it's run down" and he approached Lounds and said "you know...the Hood!" On several other separate occasions, Kunz also made the following additional comments: (1) that "Hitler would be proud of him because of his blue eyes, but not his black hair"; (2) telling Lounds that "black people smoke Marlboros" and "Shawron, you know where the hood is"; (3) asking Lounds what "skeet skeet" means in rap songs and that she "should know...because she's black"; and (4) asking Lounds if she agreed that rapper Nicki Minaj had a great body.
Lounds also identified several other comments made by various other Lincare employees. One coworker repeatedly used the phrase "Boom, Nigga!" or "Peace out my Nigga!" and on one occasion announced to the office that she had "just come back from the Hood seeing a patient." That employee also apparently "had a habit of returning from seeing a black customer and stating how she thought she would be raped." A second employee asked Lounds if she smoked Newport cigarettes and "why all black people smoke Newports." Yet another employee said "BON" to Lounds every day, which she explained was because her African-American boyfriend jokingly wanted her to call him a "Big Ol' Nigger", and also told Lounds that her son's football coach said "all blackies are stupid." Another coworker asked Lounds if her hair was a weave and several employees habitually approached Lounds by saying "Yo! Yo what's up?" in "a black accent dialect." On yet another occasion, a customer visiting the office commented on a wall hanging behind the desk of a Latina employee that "it probably took a lot of slaves to make it [the garden depicted] look that good, but nowadays it's wetbacks that do that."
All of the employees who made such race-based comments were issued final disciplinary warnings and advised that further violations of the company's anti-discrimination and anti-harassment policy would result in termination.
Following her termination, Lounds filed a Charge of Discrimination with the EEOC and, later, a federal lawsuit alleging hostile work environment based on the above comments. Lounds' claim was dismissed by the district court on the basis that the alleged race-based harassment was not sufficiently severe or pervasive enough to sustain a hostile work environment claim. The Tenth Circuit Court of Appeals reversed summary judgment and allowed Lounds' hostile work environment to proceed, determining that Lounds presented enough evidence to show that the harassing comments and conduct was sufficiently severe or pervasive to alter the condition of her employment. The Tenth Circuit agreed with Lounds' argument that the district court legally erred in considering the alleged harassers' benign intent, rather than on the subjective and objective environmental effects of the harassers' conduct on Lounds' workplace (regardless of whether the comments were intended to be abusive or not). In the appellate court's view, the original analysis was flawed by focusing on whether the actors intended to be offensive or cause harm -- especially to Lounds -- rather than on whether a jury could find that the subjective and objective effect was to pollute the environment with racially humiliating, offensive, or insulting conduct. The district court's approach "led it to minimize the polluting effect on the workplace environment of the alleged harassers' conduct," and it repeatedly erred by discounting environmental effect and focusing on motivation.
Although "the nuances of an environment [are] imposed by each instance of [complained-of] behavior" an employee's hostile workplace allegations should not be considered in a vacuum. The court's inquiry must involve "careful consideration of the social context in which particular behavior occurs and is [subjectively] experienced by its target" as well as whether the work environment would be considered objectively hostile or abusive by a reasonable employee under the same or similar circumstances. "Much like a play cannot be understood on the basis of some of its scenes but only on its entire performance, which is the sum total of those scenes, a discrimination analysis must concentrate not on individual incidents, but on the overall scenario, which is informed by the sum total of those incidents." To this end, comments and behavior that in many circumstances might appear to be facially neutral or devoid of any actual discriminatory animus may be sufficient to sustain a hostile work environment claim when that conduct is viewed in the context of other overtly racially discriminatory conduct; only a "holistic analysis" would "unearth the racial dimension of conduct that may superficially appear to be race-neutral."
In granting summary judgment in favor of Lincare, the trial court improperly based its decision on the conclusion that "no opprobrious insults or epithets were pointed at plaintiff" and that the remarks Lounds considered offensive "were not made with animosity or scorn." Specifically, the trial court noted that none of the comments "were directed to embarrass or aggravate" Lounds, "were hostile in the sense of being intentionally antagonistic or scornful," or were made with the "purpose...to insult or ridicule" Lounds. The Tenth Circuit Court of Appeals concluded that the trial court "discounted the offensiveness of key elements of the conduct based on its conclusions regarding the ostensibly benign intent of the alleged harassing actors." Whether a workplace environment is sufficiently polluted for purposes of pursuing a hostile work environment claim should not be based on whether an alleged harasser possessed the motivation or intent to cause discriminatory harm or offense. The thrust of the appropriate analysis is "aimed at the consequences or effects of an employment practice" and not at the alleged wrongdoer's motivation. These issues are best left to the jury.
In particular, the Tenth Circuit noted that use of the n-word (or its variations) and reference to lynching have particularly powerful and potent race-based effects regardless of the speaker's intent in using such phrases and would be sufficient to satisfy the summary judgment burden for a hostile work environment claim in nearly all situations. Although the lower court found the "potential sting of these statements to be mitigated by context" because they were not directed to Lounds or made for the purpose of offending her, the Tenth Circuit clarified that whether the alleged harasser's purpose or intent was to do harm -- "that is, whether the term "nigga"...was spoken by Lounds' coworker with the intent to offend or harm her -- is legally immaterial." The important question is whether the repeated utterance of this term had the effect of contributing to the creation of a racially hostile work environment and, as a consequence of improperly focusing on the harasser's motivation, the district court mitigated the environmental effect of what historically have been powerfully potent discriminatory race-based terms.
By Rebecca D. Stanglein, firstname.lastname@example.org