Context matters when it comes to offensive comments at work

Most employment lawyers in the northeast and mid-Atlantic are familiar with the Taylor v. Metzger case, in which a single racial epithet — referring to a county sheriff’s officer as a “jungle bunny” before her co-workers — was found to be enough, by itself, to create a racially hostile work environment.

Now comes the other end of the spectrum, a federal court in Arkansas holding in November that the repeated use of a form of the n-word at work — including in reference to the complaining employee herself, and continued use after she complained — did not create a hostile work environment.

As with many employment law disputes, the case of Tyrrell v. Oaklawn Jockey Club (W.D. Ark. Nov. 2, 2012), proves that context matters and — as in real estate — location, too.

Helene Tyrrell worked as part of the kitchen staff at Oaklawn, an Arkansas horse-racing venue. Shortly after starting work, Tyrrell alleged she was subjected to a barrage of offensive language by African-American co-workers, including “allegedly heavy use of the n-word.” Most of the language was not directed at Tyrrell, but she recalled one instance in which another kitchen staff member said to her and another kitchen-staff member, “I told you niggas we could get this done . . . . Y’all my niggas.”

Despite the racially charged language, the court, applying a reasonable person standard, found that Tyrrell did not suffer a hostile work environment, which the law generally defines as offensive conduct in the workplace, based on a protected characteristic, which is so severe or pervasive that it makes the work environment hostile or abusive. Importantly, the court noted that most of the n-word references were not directed at Tyrrell, and on the one occasion it was used in a non-derogatory fashion (praising her and others for accomplishing a task), and “was at most coarse jesting.” The court also noted other key factors in favor of its judgment for the employer: (1) Oaklawn management promptly and thoroughly investigated Tyrrell’s complaints and (2) the company instructed staff members to refrain from using offensive language and took action against one employee who failed to heed the warning. As such, the court ruled it was not appropriate to hold the employer responsible for the comments by the co-workers.

Would such a decision be rendered by a more liberal judge in Philadelphia? Who knows, but the case does illustrate the importance of putting alleged comments and actions in context.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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