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The 4th Circuit recently vacated, in part, the District Court’s ruling, in EEOC v. Xerxes, on defendant’s summary judgment motion in a Title VII racially hostile work environment claim. Specifically, in Xerxes (fiberglass tank manufacturer based in Minneapolis, Minnesota), the 4th Circuit held that there was an issue of material fact as to when the employer had notice of complaints of discrimination from three African-American, male employees — and thus whether the employer took prompt remedial action — which is enough to avoid dismissal at the summary judgment stage and allow the case to proceed before a jury trial.

The alleged harassment included name-calling such as “Black Polack,” “Buckwheat,” and “boy;” White co-workers’ frequent used of the N-word; and the discovery of a note (delivered on a piece of fiberglass) in the locker of an African-American employee that included the following language: “KKK plans could result in death, serious personal injury….”

The 4th Circuit summarized:

To survive summary judgment on a claim of a racially hostile work environment, the EEOC “must demonstrate that a reasonable jury could find [the] harassment (1) unwelcome; (2) based on race; and (3) sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere. In addition, the EEOC must present sufficient evidence of a fourth element: that there is some basis for imposing liability for the harassment on the employer.

Where an employee has been harassed by a coworker, the employer may be liable in negligence [under the fourth element] if it knew or should have known about the harassment and failed to take effective action to stop it. Once the employer has notice, then it must respond with remedial action reasonably calculated to end the harassment.

[…]

It is possible that an action that proves to be ineffective in stopping the harassment may nevertheless be found reasonably calculated to prevent future harassment and therefore adequate . . . as a matter of law….In such cases [courts] consider the timeliness of the plaintiff’s complaint, whether the employer unduly delayed, and whether the response was proportional to the seriousness and frequency of the harassment.

EEOC v. Xerxes, No. 10-1156 (4th Cir. April 26, 2011), the U. S. Court of Appeals for the Fourth Circuit, (internal citations and quotations omitted)

Although, in his concurring opinion, Judge Wilkinson noted that “[t]he undisguised ugliness of the incidents alleged here stands as a rebuke to complacency and a reminder that the task of racial reconciliation in our country remains incomplete,” he continues: “[t]here is a danger also, if the law requires too heavy an employer fist, that we stiffen interpersonal relationships; punish those inadvertent insensitivities that can arise even among persons of good will….”

Overall, notwithstanding the fact that this particular case survived summary judgment, the decision and law is still replete with pro-corporation/pro-employer language and is unsurprisingly dismissive of what it terms or refers to as the “stray,” “inadvertent,” or “isolated” racial epithet, as if these racially derogatory and hostile remarks occurred in a vacuum.

Race discrimination claims, which have increased over the past two decades, are routinely dismissed by a predominantly white male judiciary because the judges don’t find the plaintiff’s story “plausible.” (note: plausibility is the legal standard for determining whether a plaintiff’s claim can survive a defendant’s motion to dismiss — that is, the question is whether the plaintiff has enumerated sufficient facts to demonstrate s/he has a “plausible” claim).

Consider one particular example, where the 11th Circuit Court determined that a black-male plaintiff had not established a racially hostile work environment, pursuant to Title VII of the Civil Rights Act of 1964, even after he had been repeatedly called “boy” by his supervisor and coworkers, and his supervisor had referred to placing a noose around someone’s neck. The Court held that the conduct was not severe and pervasive enough to rise to a level of hostile work environment. This case is not the exception, but the norm in the jurisprudence across the country.

A 2009 study, “The Myth of the Color Blind Judge,” concludes:

“Our interpretation is that race affects a judge’s ability to appreciate the perspective of a plaintiff of another race. Thus, White judges as a group are less able to identify and empathize with African American plaintiffs, making it inherently more difficult to find the plaintiffs’ arguments plausible and credible. This interpretation helps explain why White judges deny African American plaintiffs’ claims so often.

“In contrast, it appears that African American judges are more capable of transcending their own demography and do not let color influence their decision making. They can identify with African American plaintiffs, but also with plaintiffs of other races. At the same time, African American judges still discern between more or less credible claims, holding for plaintiffs only about half of the time.”

Even while law school populations become more relatively diverse, the non-transparent judicial selection/appointment process is still governed by a homogeneous group of well-connected, privileged class of White males, whose inherent biases serve as a normative experiential framework in adjudicating discrimination claims.

With respect to women of color represented in the profession, much less the judiciary, an ABA report notes:

Women of color experience a double whammy of gender and race, unlike white women or even men of color who share at least one of these characteristics (gender or race) with those in the upper strata of management. Women of color may face exclusion from informal networks, inadequate institutional support, and challenges to their authority and credibility. They often feel isolated and alienated, sometimes even from other women.

Furthermore, state courts do not fair any better.

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