Sticks and Stones

Most people have heard this saying at some point in their life, probably as a child. “Sticks and stones may break your bones, but words can never harm you.” With a quick internet search, references to this saying go back as early as to the 1800s. The intent of the saying seems clear; to help someone soldier on in the face of hurtful words. Yet, there are countless stories noting that, in fact, words can and do harm people.

The courts have grappled with this concept in the realm of harassment and hostile environment cases. Are there words that are sufficiently hurtful as to create a claim for racial harassment or the creation of a racially hostile working environment? What is the employer’s responsibility to stop such conduct?

Dena Lindsay-Felton worked for KBP as a restaurant manager until she resigned in September 2016. She resigned claiming she was having to work in a racially hostile working environment. She reported to the Area Coach (over several restaurant locations), Shue Kumar. To prove a racially hostile environment, she had to prove she was subjected to (1) unwelcome conduct, (2) based upon her race, (3) which was sufficiently severe or pervasive as to alter her employment and create an abusive work environment, and (4) which was the legal responsibility of her employer.

Lindsay-Felton is African-American. KBP filed a motion for summary judgment arguing there was insufficient evidence for the case to proceed to a jury trial. KBP argued that Kumar’s issues with Lindsay-Felton were work-related, not race-related; that Kumar had in fact promoted Lindsay-Felton previously, and that any stray inappropriate remarks were not made about Lindsay-Felton. However, the record reflected Kumar voiced some concerning statements. Kumar scolded a new employee for forgetting his ID saying, “that’s why you n*****s will never be nothing, will never amount to nothing…”. Lindsay-Felton overheard this. She was also told by others that Kumar used this term in the workplace, although she never again heard it. Kumar called her stupid or dumb to her face. Kumar referred to African-American employees (and one Caucasian employee) as “cockroaches”. Kumar told her that “women of – of her culture” were beneath him. Two other witnesses (former emplo yees) provided sworn statements that they heard Kumar make racially derogatory comments.

Based upon that evidence, the Court recently denied KBP’s motion and ordered the case to be presented a jury. It did so, citing several other cases confronted with this particular racial epithet:

…”the use of the word, ‘n[****]r’ is pure anathema to African-Americans, as it is to all of us” and such word “is the kind of insult that can create an abusive working environment in an instant” as it is “degrading and humiliating in the extreme.” … “As other courts have observed, perhaps no single act can more quickly alter the conditions of employment than the use of an unambiguously racial epithet such as ‘n[****]r’ by a supervisor.” … “‘[I]n my view, being called the n-word by a supervisor-as [the plaintiff] alleges happened to him-suffices by itself to establish a racially hostile work environment.”

Citations omitted but including the 4th Circuit and the D.C. circuit. Although this was a November 7 decision out of the Eastern District of Virginia, it is in keeping with decisions across the country including Oklahoma.

In May of 2017, the Tulsa federal district court issued a similar ruling in King v. Southwest Aviation Specialties, LLC. This case arose out of conversation at the workplace surrounding the video that made news from the University of Oklahoma’s SAE chapter, which was racially charged. In the at-work discussions, King was the only African-American. It was alleged that King’s supervisor made a comment. The content of the comment was disputed but it was either “pardon me, but a lot of my friends are n*****s and some of them are not n*****s” or the comment was “I was raised on the north side of Tulsa and some of my best friends were black and I can tell you from experience that the word n****r has nothing to do with a person’s skin color.”

The employer argued it was a single incident and not directed to King, so it was not “severe or pervasive” as is required to create a legal claim. The court was not persuaded. The Court wrote, “Even an isolated comment, if sufficiently severe, can suffice to survive summary judgment….the comment, as described by Plaintiff, involved use of the word ‘n****r’ which courts have deemed “polluting” and “pure anathema.”’

While we may continue to recite “Sticks and Stones” to help others through times of adversity, such an adage is certainly not good legal advice. Instead, employers should think about words in terms of the long line of cases and remember –

• Words can harm your employee.
• Words of managers and supervisors can be imputed to the employer such that the employer is responsible.
• Words of even co-employees can be the employer’s responsibility if the employer knew or should have known and failed to take corrective action.

Words matter.

By Kristen Brightmire, kbrightmire@dsda.com