Many workers believe they have been subjected to discriminatory comments by co-workers. Harassment by co-workers is sometimes referred to as a hostile work environment. It does not become actionable until management becomes aware of the harassment and fails to take action. But, what if the perceived discrimination is not necessarily discrimination? In Barnes v. Prairie View A&M, No. 14-15-01094 (Tex.App. Hou. 6/15/2017), Patrice Barnes, African-American, believed she was subjected to racist comments by co-workers. A long-time employee, she began complaining in 2007 about racist comments. A white co-worker observed ceiling insulation falling on people below and said it looked like an “old fashioned tar and feathering party.” Ms. Barnes explained to a third co-worker that tar and feathering referred to actions taken against slaves, and the white co-worker still made the remark again. Ms. Barnes accused co-workers of hiding paperwork and files, of asking her the same questions over and over, talking over her at meetings, etc.

The 14th Court of Appeals in Houston said this conduct did not amount to a hostile work environment. To constitute harassment, the actions by the co-workers must be severe or pervasive. The court addressed the tar and feathering remark and a second remark.  A secretary told one of Ms. Barnes’ clients to go to the white agent, not Ms. Barnes, because Ms. Barnes’ office was the “black” program. It found those two remarks, even if they were deemed racist, were not enough. Two remarks are not enough to constitute a severe or pervasive harassment. Prairie View argued the remarks were based on mis-understandings. The court was not willing to characterize them as racist. Indeed, we have to comment that tar and feathering has some notoriety in American history, but at least to my knowledge, not involving slavery. A remark that is capable of two or more different meanings will not be deemed to be racist.

Regarding the other allegations of conduct by co-worlers and her supervisor, the court found no connection to race. Ms. Barnes argued that since she was the only African-American in the office and because she was the only person subjected to those actions, then it must be race related. The court would not go there. Most courts will not infer racism from targeted actions alone. There has to be something more. The Fourteenth Court did agree that racism need not be explicit. But, the plaintiff has not pointed to any evidence which would support a racist animus on the part of the supervisor. The court of appeals affirmed the grant of summary judgment. See the decision here.

I have been told myself by potential clients that an entire office is discriminating against him/her. But, it is exceedingly difficult to show several employees are acting in concert based on race. That sort of allegation would need better evidence, not lesser evidence.