“Equal Opportunity” Harassment Can Create Liability

Clennon Melton was the only Black employee at a truck dealership in Florida. The owner and other managers regularly made derogatory remarks about non-White customers, using racial slurs about not only Black people, but also about Hispanics, Asians, and people from the Middle East. One manager refused to deal with non-White customers and sent them all to Clennon. If a Black customer paid in cash, the owner and his son regularly commented that the money must have come from some illegal activity. 

One day, Clennon disputed the amount of a sales commission. The discussion turned into a yelling match that ended with the supervisor telling Clennon: “Boy, you’d better get out of my office.” Clennon complained to the owner, who had overhead the fight, about the use of the term “boy” and the racially charged comments the supervisor had made about customers. The owner reprimanded both Clennon and the supervisor for arguing but took no action to punish the supervisor’s racist behavior.

After Clennon was fired for alleged performance deficiencies, he sued, claiming a racially hostile environment. The trial court dismissed his case, but the federal appeals court reversed and sent the case back for a jury trial. While the appeals court relied in part on a 2006 Supreme Court case that held that “boy” can be a racial slur when directed at an adult Black man, it also looked at the evidence of pervasive hostility toward dark-skinned or non-White customers, which the trial court had discounted: 

Because [Clennon] was the only nonwhite employee…, he was forced into an out-group—one that could have included any nonwhite person, who would in turn have been targeted based on his or her race. In that environment, the routine targeting of any nonwhite customer by a dominant white majority could reasonably make the environment hostile for a black employee…And in using a racial slur to his face, [the supervisor] confirmed what a reasonable person in his position could have concluded long ago: that [Clennon] too was disfavored because of his race…[P]rejudice against other minority groups can evidence the workplace majority’s in-group preference, which in turn results in out-group bias. 

Melton v. I-10 Truck Ctr. Inc., 166 F.4th 905, 926-7 (11th Cir. 2026)

What this means to you:

The so-called “equal-opportunity-harasser” defense allows harassers who target both males and females or who go after people of differing races to escape liability. A few courts have allowed the defense because they reason that an equal-opportunity harasser treats everybody badly and, therefore, plaintiffs cannot prove they were treated worse because of their race or gender. 

But that analysis is seriously flawed, because those courts are accepting that the more people one harasses, the less liability one has! An equal-opportunity harasser is a more offensive person than a traditional harasser because an equal-opportunity harasser treats everyone abusively. Certainly, more reprehensible conduct should not serve as a defense to liability for bad acts. 

Employers must ensure that all employees’ work environment is free from harassment, of all types. That means creating meaningful anti-harassment policies, training all employees on the policies, enforcing the policies, taking complaints seriously, and promptly and fairly investigating complaints. 

To create and maintain a respectful workplace, smart employers train their workforces on values, policy, and the law. Stupid employers are forced to do training to correct problems after they’ve been sued. To book a 2026 workshop and learn how our Managing Within the Law, Respectful Workplace, and other programs can help your organization prevent and address harassment, please call 800-458-2778 or email us. 

Updated 04-10-2026