As reported by Law360 (subscription), on March 18, 2021, Lieff Cabraser and The Equal Justice Society filed an amicus brief in the Fifth Circuit Court of Appeals on behalf of a coalition of civil rights groups, law school professors and other scholars in support of a Black former hospital worker’s race bias suit. In the brief, the amici argue that even a single use of the N-word “annihilates the well-being” of its target and constitutes discrimination.
The scholars’ amicus brief notes that there’s a circuit split the high court needs to resolve when it comes to whether a single use of, or minimal exposure to the slur, is sufficient to create a hostile work environment under Title VII.
Former operating room aide Robert Collier alleges he was exposed to the slur every day at Dallas’ Parkland Memorial Hospital because it was carved into the elevator he took to work. Law360 observes that the brief underpins Collier’s arguments that the Fifth Circuit wrongly upheld summary judgment for the hospital in his suit.
“The Fifth Circuit’s holding that, as a matter of law, a single workplace infliction of [the N-word] is not actionable under Title VII ignores both the slur’s historical and social context and this court’s requirement that this context be considered,” the scholars said in the brief.
According to the brief, the Sixth, Seventh, Eighth and Tenth circuits have reached similar conclusions as the Fifth Circuit. However, the scholars note that the Third, Fourth and D.C. circuits have held that one instance of the word is actionable under Title VII.
Citing its “assaultive and wounding nature,” the scholars likened the severity of the slur in race bias suits to the degree of gravity a sexual assault carries in a gender discrimination suit. They also argued that use of the word is akin to a demotion, as it causes decision makers to devalue Black employees.
The scholars said “the slur is most profound when used at work because of the amount of time employees spend there,” arguing that “it is enough to cause both negative physiological and psychological effects, as in Collier’s case, where daily exposure to the word triggered anxiety and hypervigilance.”
“It wields enough power to cause a domino effect of psychological harm to the target’s mental and physical health,” the scholars said. “The N-word at work transcends microaggression or mere utterance because it lands with violence on the body, mind, and soul and annihilates the well-being of the victim.”
The slur’s violent history precludes it from being excused as a stray remark or microaggression, the scholars argued. They noted that its use enforces social hierarchy and empowers bystanders to use similarly toxic language.
“The N-word is also uniquely harmful because it undermines dignity and self-esteem, moral characteristics that modern psychology embraces as fundamental human needs,” the scholars said. “Like a contagion, it embeds and replicates the pathogenic racial subjugation-domination dynamic in the workplace culture.”