Potential clients have asked me about this scenario: if co-workers make racial comments about a well-known figure, do these comments help show racial animus toward his/her situation? This situation is presented in a case heard by the Eleventh Court Of Appeals. A black nurse heard racial comments about former President. Obama and about black patients. The nurse was fired. She sought to use those comments to show a hostile work environment. Do racial comments directed toward other persons create a hostile work environment for the nurse?
The Eleventh Circuit said no. The district court granted the hospital’s motion for summary judgment, and the higher court affirmed. The appellate court said “isolated epithets” are bot sufficiently pervasive. [Okay, but for this lawyer, that sounds like the court of appeals making a finding of fact. A jury should decide what is pervasive enough to create a hostile work environment.]
Cynthia Yelling, the nurse, heard comments by workers when then Pres. Obama came to Alabama. One co-worker asked if he was coming to hand out food stamps? Another nurse said Michelle Obama looked like a monkey. Another nurse said Pres. Obama was stupid and should go back to Africa.
Ms. Yelling complained about the remarks but no one was disciplined. Her complaints were not investigated. The comments were not directed toward Nurse Yelling. Some of the comments were more political than racial. But, the Eleventh Circuit said even viewing these comments as race based, the court did not believe a reasonable jury could find them to be extreme harassment. See ABA Bar Journal report here. See the decision in Yelling v. St. Vincent’s Hospital, No. 21-10017 (11th Cir. 10/5/2023) here.
[Too, the suggestion that some racial comments are too “isolated” smacks of courts addressing issues best left to juries. In personal injury law, it is an accepted principle that you take a plaintiff as you find them. Some plaintiffs have greater susceptibility to certain injuries. The same principle should apply to discrimination law, that some persons are more susceptible to racial comments. A jury should make such determinations, not a judge.]