The U.S. Court of Appeals for the Fifth Circuit, in Woods v. Cantrell (Appeal No. 21-30150) ruled for the first time that a single incident of the "n-word," in certain circumstances, could be sufficient to support a hostile work environment claim – harassment based on race - under Title VII of the Civil Rights Act of 1964.

In that case, Woods, a Hispanic, former employee of the city of New Orleans alleged that his supervisor called him a "Lazy Monkey-Ass [N-word]" in front of his coworkers. The district court did not think the one comment supported a cause of action and dismissed Woods' complaint. He appealed.

In an amicus brief, the U.S. Department of Justice (DOJ) argued that the trial court "failed to give adequate weight to the 'egregious racially derogatory' language in the slur… which contained several highly offensive words, not just one intolerable epithet," as well as the context of a supervisor using the slur in front of other employees.

The Fifth Circuit reversed the trial court's dismissal of Woods' complaint, reinstated it, and sent the matter back to the trial court so that litigation could proceed.

In 2017, the U.S. Court of Appeals for the Third Circuit had allowed a hostile work environment case to proceed that involved a single use of the "n-word." Alison Frankel "Lone use of racial slur justifies hostile workplace claim - 5th Circuit" www.reuters.com (Mar. 28, 2022).

Commentary and Checklist

Employers must investigate every complaint of discrimination and/or harassment – even if it involves a one-time comment or behavior.

The investigation may reveal that considering all the facts determined in the investigation, no law was broken, or it may reveal a serious issue to be responded to appropriately. Even if the investigation reveals the report of wrongdoing did not rise to a violation of the law, the behavior investigated can be corrected and stopped before it progresses further.

Here are some additional best practices for preventing race-based harassment:  

• Incorporate into your mission that workplace participants be treated equally, fairly, and respectfully
• Establish policies, procedures, and standards that promote equality, require civility, and respect boundaries and adhere to policies, including policies that prohibit harassment based on race and/or color
• Enforce your organization's policies, procedures, and standards, including those that prohibit harassment based on race and/or color
• Encourage all workplace participants to report harassment based on race and/or color that they view, discover, or reasonably suspect is occurring
• Avoid hiring or selecting applicants or workers with a history of harassing others based on race and/or color
• When hiring, require work and personal references and ask the references if the applicant has a history of harassment based on race and/or color, harassment complaints, uncivil or disrespectful behavior, and/or ignoring boundaries. If the answer is yes, move onto another applicant
• Review the public social media pages of applicants to determine if they engage others in a civil and respectful manner and if they respect the boundaries of others
• Discipline any employee — regardless of title, status, or duties — who engages in, encourages, or promotes harassment based on race and/or color, is uncivil to workplace participants, and/or ignores boundaries of others and/or the organization
• Discipline any employee — regardless of title, status, or duties — who makes a knowingly false claim of harassment based on race and/or color
• Make certain all terminations are based on provable and documented objective factors, related to job performance, and not based on subjective, arbitrary, or illegal factors, including terminations for reporting, complaining, and/or providing testimony about harassment based on race and/or color
• Make certain that new leadership treats existing employees equally, fairly, and legally prior to hire or transfer and does not have a history of harassment based on race and/or color, harassment complaints, uncivil or disrespectful behavior, and/or complaints regarding respecting boundaries of others
• Document all actions related to termination or discipline of workers, including workers accused of harassment based on race and/or color
• Require all workplace participants to take discrimination prevention training, that includes information on racism and/or color discrimination, in a language they understand
• Require all workers to take diversity, equality, inclusion, and civility training in a language the trainee can understand
• Provide several safe and effective means for workplace participants to report harassment based on race and/or color
• Clearly communicate, through policies, procedures and postings, the means and process by which workplace participants can report harassment based on race and/or color
• Allow for a means by which workplace participants can report harassment based on race and/or color anonymously without fear of retaliation
• Investigate all reports and reasonable suspicions of harassment based on race and/or color in a thorough, prompt, and objective manner
• Consider the use of third-party investigators for harassment investigations that involve executive management, more than one complainant, charges of assault or abuse, or where there is a conflict of interest with investigators that are workplace participants
• Prohibit retaliation against workplace participants who report or complain about harassment based on race and/or color or who are involved in investigations regarding such harassment
• Provide a safe and effective means for workplace participants, who report or complain about harassment based on race and/or color or who are involved in investigations regarding such harassment, to report retaliation