The Fifth Circuit has apparently decided that an employer will get a free pass when a supervisor makes one and only one racist comment. The supervisor was a co-worker of Courtney Satterwhite when he made the comment. Harry Singh, according to Mr. Satterwhite, uttered “Heil Hitler” during a conversation, at which a Jewish worker was also present. Mr. Singh claims he merely said “we are not in Hitler court.” Regardless of what was said, Mr. Satterwhite reported what he heard to City of Houston Human Resources. Mr.Singh apologized to the Jewish co-worker. A higher level manager verbally reprimanded Mr. Singh. Mr. Singh approached the Jewish co-worker to ask him why he had reported the statement. The co-worker said he did not report the comment. Mr. Satterwhite reported the statement to HR, said the co-worker.

A few months later, Harry Singh is promoted and now becomes Mr. Satterwhite’s boss. About that time, the Jewish Anti-Defamation League sent two letters to the Office of Inspector General for the City complaining about the “Heil Hitler” comment. The OIG investigated and also found Harry Singh at fault. Over the next few months, Mr. Singh disciplined Mr. Satterwhite on several occasions. In an email, Courtney Satterwhite accused Mr. Singh of singling him out for reprisal because he reported the Hitler comment. A short time later, Mr.Singh sought the demotion of Mr. Satterwhite. At a hearing within the City of Houston, Mr. Satterwhite said this was reprisal because he complained about Mr. Singh’s statement. Nevertheless, Mr. Satterwhite was demoted two grades. Mr. Satterwhite then filed a complaint with the EEOC.

At the trial level, the district court granted summary judgment for the employer. The Fifth Circuit affirmed. The higher court found that the issue was whether the statement, “Heil Hitler,” created a hostile work environment. The court correctly noted that whether a hostile work environment is created depends on the nature of the harassment, including its severity. But, this is not a hostile work environment case. Mr. Satterwhite did not report the statement because he believed Mr. Singh was harassing him. He reported the statement because he thought it was harassing, or potentially harassing toward the Jewish co-worker. This is a straight retaliation case, not a hostile work environment case. The court cites a 2007 case, Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 349 (5th Cir. 2007) for the holding that a remark by a supervisor could not “reasonably” have been perceived as a racist comment. The phrase “ghetto children” was an isolated comment, said the court in Turner. And in Turner, there were other observations by the plaintiff suggesting that race was a motive on the part of her supervisor. The Fifth Circuit was wrong in Turner. The jury should have construed that one remark, not the court.

The higher court is also wrong in Satterwhite. The jury should construe the remark and its context, not the court. The Satterwhite opinion adds that one “isolated” discriminatory comment will not create a hostile work environment. The court found that a person could not “reasonably” believe that one statement will create a hostile work environment.

Well, that depends, doesn’t it? It depends on the context of the one statement. And, who determines the value of context? The jury should. The purpose of jury is to establish community values and context. The Fifth Circuit is wrong to apply its version of “reasonable” and disregard the value of a jury. See decision in Satterwhite v. City of Houston here.