If you have been following the news the past several days and have heard about the Paula Dean situation you might understand how something you say might have a negative impact on your life. It’s much the same for everyday life at work for any employee. What is said can affect not only the person who says something “improper” but their co=workers and their employer as well.  The Paula Dean story and the very recent case from BNA below, serves to remind us that we should discuss with our employees the danger of improper speech in the workplace. This case also points out how a hostile environment can be created.

Did Racial Slurs Create a Hostile Workplace Environment?

“Hey Geronimo, think your crew can finish that wiring job, or do I need to send up smoke signals?” electrician foreman Andy Duke said.

“I’ve had about enough of your cracker comments, Andy,” responded Ralph Assarassakorn, another foreman.

A Pattern of Slurs?

Facts: The plaintiff worked as a contractor for the defendant electrical firm for roughly seven months in 2005 and returned to the company as a journeyman electrician in December 2006. He was assigned to work on a two-building college dormitory project and promoted to a foreman position in March 2008.

The plaintiff, who is of Thai and Hawaiian extraction, said he became friendly with a white general foreman during this time and the two played golf together outside of work. Nevertheless, the plaintiff claimed that the other foreman began to address him by using a variety of racial slurs, including “coconut, pineapple, and gook” and Native American names such as “Geronimo, Cochise, and Navajo.”

According to him, the other foreman used the offensive terms more than 30 times over a two-month span and often addressed him in this manner while workers the plaintiff supervised were also present.

The other foreman allegedly persisted in using the slurs after the plaintiff asked him to stop, explaining that he was just “clowning around.” The plaintiff admitted that he “occasionally reciprocated,” according to the court, referring to the other foreman as “honky” and “cracker.”

Following his termination or quitting—the court said the record was unclear—the plaintiff filed a grievance with his union and a charge of discrimination against the company with the Equal Employment Opportunity Commission. EEOC issued a determination finding reasonable cause to believe that the former employer had discriminated against the plaintiff. In response, the company cited the other foreman for “improper conduct” and instituted a corrective action to ensure his compliance with company policy. The plaintiff later sued the company for race discrimination under Title VII of the Civil Rights Act of 1964.

Award: The plaintiff’s Title VII claims can proceed to trial, the U.S. District Court for the District of Arizona ruled June 19, 2013 although the court also granted the defendant summary judgment on the plaintiff’s claim for punitive damages (Christopher v. Spectra Elec. Serv. Inc., D. Ariz., No. 2:12-cv-00345, 6/19/13).

Discussion: The court found that the plaintiff raised a triable issue as to whether the other foreman’s behavior was sufficiently severe and pervasive to create a hostile work environment.

Distinguishing the matter from other cases in which the isolated use of slurs was not considered indicative of a hostile work environment, the court said the other foreman’s alleged name calling was “part of a regular and ongoing pattern of communication.”

Specifically, the court said the other foreman’s alleged conduct was more severe and pervasive than that at issue in Vasquez v. County of L.A., (92 FEP Cases 1630, 349 F.3d 634 9th Cir. 2004), in which a supervisor made only two discriminatory statements over a six-month period. Similarly, Kortan v. California Youth Auth., (83 FEP Cases 618, 217 F.3d 1104 9th Cir. 2000) largely involved a “single outburst” after a workplace dispute, according to the court.

The court held that the plaintiff was not entitled to seek punitive damages for the harassment claim, however, because he did not show that his former employer acted with malice or reckless indifference to his rights.

Pointers: The prohibitions against racial discrimination are similar to those prohibiting sexual harassment. If an employee can show that racism was so widespread or prevalent, or so severe that it created a hostile workplace environment, she may be able to successfully bring a racial harassment claim. The more severe the acts, the less widespread they must be.

To show that employers are liable for acts by co-workers, the employee must show that the employer knew of the harassment—or that it was so widespread the employer should have known about it—and that the employer did nothing to correct the situation, or that any corrective measures were ineffective.

Certain conduct may be found to be racial harassment. Less severe behavior, such as allowing racial slurs and epithets, racist graffiti, and racist jokes in the workplace have also been found to be widespread and severe enough to constitute racial harassment in certain circumstances.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.