N.J. Supreme Court rules one racist comment = harassment

Ms. Taylor, an African American, had been a sheriff's officer for 20 years. One day she passed by the Sheriff and Undersheriff and said hello. The Sheriff turned to the Undersheriff and said: "There's the jungle bunny." The Undersheriff laughed. Ms. Taylor believed the remark to be a demeaning and derogatory racial slur, but did not reply.

At that point, she became a "nervous wreck," began crying, and went to the bathroom. She returned to the Police Academy classroom where she was taking a course, where she was the only African American and the only woman. Holding back tears, she related her experience to co-workers. The other officers laughed; one responded: "I'm a black Irishman." This further offended Taylor, who felt their reactions were insensitive.

A few days later, she demanded a written apology. The Sheriff stated that he had used the phrase "jungle bunny" with a different connotation in the Marine Corps, claiming that he was not aware that the remark had a derogatory connotation. He badgered her for interpreting the remark as a racial slur and stated that he needed to think before deciding whether to apologize in writing.

The following day, he summoned Taylor to meet with him. He offered a written apology in which he admitted calling Taylor a "jungle bunny," but also claimed that Taylor had been wearing camouflage fatigues at the time of the comment. Taylor refused to accept the apology because the description of her clothing was not factually accurate; she was actually wearing jeans.

Following the incident, Taylor did not lose any income and her basic job duties remained unchanged. She did, however, lose her position as a floor supervisor. Taylor felt she suffered a loss of dignity and self-respect, with other officers acting coolly toward her and appearing afraid to speak to her.

Taylor claimed the incident caused her emotional distress, and her psychiatrist concluded that her distress was directly related to and caused by the racial slur.

The New Jersey Supreme Court held that, under the facts of this case, a single racial epithet was sufficiently severe to have created a hostile work environment. In addition, Ms. Taylor could claim intentional infliction of emotional injury.

The Court said, "The circumstances -- that the insult was clearly a racist slur, that it was directed against plaintiff, that it was uttered by the chief ranking supervisor of her employ, the Sheriff of Burlington County, and that it was made in the presence of another supervising officer -- were sufficient to establish the severity of the harassment and alter the conditions of plaintiff's work environment."

Case Excerpts

As expressed by the court in Nadeau , supra , although many of the cases considering hostile environment harassment claims[] involve a pattern of inappropriate conduct, there is no requirement that harassment occur more than one time in order to be actionable. The standard contemplates conduct that is either severe or pervasive. Although the conduct may be both, only one of the qualities must be proved in order to prevail. The severity of the conduct may vary inversely with its pervasiveness. Whether the conduct is so severe as to cause the environment to become hostile or abusive can be determined only by considering all the circumstances, and this determination is left to the trier of fact.

Racial epithets are regarded as especially egregious and capable of engendering a severe impact. See Robert J. Gregory, You Can Call Me a "Bitch" Just Don't Use the "N-word": Some Thoughts on Galloway v. General Motors Service Parts Operations and Rodgers v. Western Southern Life Insurance Co. , 46 DePaul L. Rev. 741, 748 (1997) ("Courts have viewed racist epithets as beyond the pale, regardless of the prevalence of these epithets in the workplace.").

Further, the severity of the remark in this case was exacerbated by the fact that it was uttered by a supervisor or superior officer. Defendant was not an ordinary co-worker of plaintiff; he was the Sheriff of Burlington County, the chief executive of the office in which plaintiff worked. That fact greatly magnifies the gravity of the comment.

A supervisor has a unique role in shaping the work environment. Part of a supervisor's responsibilities is the duty to prevent, avoid, and rectify invidious harassment in the workplace. See Lehmann , supra , 132 N.J. at 622-23 (holding an employer was vicariously liable for sexual harassment if it had knowledge of the harassment but failed to stop it promptly and effectively). An employer has a clear duty not only to take strong and aggressive measures to prevent invidious harassment, but also to correct and remediate promptly such conduct when it occurs. Payton v. New Jersey Turnpike Auth. , 148 N.J. 524, 537 (1997) (holding that an employer's remedial response to complaints of harassment is relevant to an employee's discrimination claim); Amirmokri , supra , 60 F. 3d at 1131 (imposing liability for employer's failure to take prompt action calculated to end ethnic harassment after becoming aware of it); Ellison v. Brady , 924 F. 2d 872, 882 (9th Cir. 1991) (requiring an employer to end sexual harassment); Davis , supra , 858 F. 2d at 349 (shielding an employer from liability because it "took quick and appropriate measures to remedy the situation"); Peter M. Panken et al., Sexual Harassment in the Workplace: Employer Liability for the Sins of the Wicked , SB36 A.L.I. - A.B.A. 203, 228 (1997) (recognizing employers lessen liability by having an effective and responsive complaint procedure).

Here, defendant did more than merely allow racial harassment to occur at the workplace, he perpetrated it. That circumstance, coupled with the stark racist meaning of the remark, immeasurably increased its severity.

The Sheriff of Burlington County is a high-ranking law enforcement officer. That fact is of significance when evaluating the effect of his remark on a subordinate. Any remark from such an individual carries with it the power and authority of the office. Because the sheriff was both plaintiff's superior and her offender, plaintiff could not seek the redress that would otherwise be available to a victim of invidious workplace harassment, namely, resort to her own supervisor. ... Indeed, plaintiff's dilemma was acute and insoluble. She had nowhere to turn. When plaintiff did turn to defendant, she did not receive any redress or protection whatsoever, let alone comfort, solace or contrition. Rather, she was rebuffed and further agitated, to the point of tears, for taking offense to a remark that was clearly a slur against her race.

A rational factfinder may conclude that under the circumstances a reasonable African American could believe that, when the chief executive of her office calls her a "jungle bunny," he thinks she has less worth as a person and is inferior to other employees because of her race. Moreover, a jury could reasonably find that the reasonable African American would believe that such a remark made in the presence of another supervising officer portrays an attitude of prejudice that injects hostility and abuse into the working environment and significantly alters the conditions of her employment. See Rodgers , supra , 12 F. 3d at 675 ("Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as `nigger' by a supervisor in the presence of his subordinates." (citation and internal quotations omitted)).

Undoubtedly, in some, perhaps most, cases, evidence that the hostility or abuse deleteriously alters the conditions of employment is necessary in order to establish the requisite severity of the discrimination.

The offensive remark was made in the presence of another supervising officer. When plaintiff told her co-workers of defendant's remark, they laughed, and one apparently mocked her. Moreover, plaintiff had no realistic opportunity for redress. ... Consequently, a rational factfinder, crediting such evidence, may conclude that defendant's racial slur altered plaintiff's working conditions.

In Bradshaw v. Swagerty , 563 P. 2d 511, 514 (Kan. App. 1977), the court determined that "the trial court was fully justified in regarding the [racial] epithets complained of here as `mere insults' of the kind which must be tolerated in our roughedged society." We disagree. In this day and age, in this society and culture, and in this State, an ugly, vicious racial slur uttered by a high-ranking public official, who should know better and is required to do better, cannot, in light of this State's strong and steadfast public policy against invidious discrimination, be viewed as a picayune insult. That view would be blind and impervious to the lessons of history.

[R]acial insults are in no way comparable to statements such as, "You are a God damned woman and a God damned liar," which the Restatement gives as an example of a "mere insult." Racial insults are different qualitatively because they conjure up the entire history of racial discrimination in this country. [Richard Delgado, Words that Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling , 17 Harv. C.R.-C.L. L. Rev. 133, 157 (1982).]

"The term `nigger' is one of insult, abuse and belittlement harking back to slavery days." Bradshaw , supra , 563 P. 2d at 514. The term "jungle bunny" is similarly disparaging. "Racial insults, relying as they do on the unalterable fact of the victim's race and on the history of slavery and race discrimination in this country, have an even greater potential for harm than other insults." Delgado, supra , 17 Harv. C.R.-C.L. L. Rev. at 143; see also Karins v. City of Atlantic City , __ N.J. __, __ (1998) (slip op. at 41) (recognizing that certain words, in the context of history, carry a message of "hatred, persecution, and degradation of certain groups" (internal quotations omitted)); Kent Greenawalt, Insults and Epithets: Are They Protected Speech? , 42 Rutgers L. Rev. 287, 291-92 (1990) ("The significance of group epithets is . . . they call to mind whatever `negative' qualities are associated with a group, qualities such as laziness, greed, dishonesty, stupidity, vulgarity.").

CARRIE TAYLOR, v. HENRY W. METZGER, BURLINGTON COUNTY SHERIFF,
___N.J.___, (SUPREME COURT OF NEW JERSEY, NO. A-9 SEPTEMBER TERM 1997, decided February 18, 1998)

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