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Employment: One Time Use of the “N-Word” May Create a Hostile Work Environment
The Federal Court for the D.C. Circuit in Ayissi-Etoh v. Fannie Mae recently found that a single use of the “N-word” could amount to actionable racial harassment. Although this case is not controlling in Ohio, it nonetheless may be considered persuasive authority.Ayissi-Etoh, a black male, was promoted to a team lead position and not given a raise. According to Ayissi-Etoh, when he approached one of his supervisors, Fanny Mae’s Chief Audit Executive, regarding a raise, the Chief Audit Executive said: “For a young black man smart like you, we are happy to have your expertise; I think I’m already paying you a lot of money.” Ayissi-Etoh later met with another one of his supervisors, Fannie Mae’s Vice President of Internal Audits, who Ayissi-Etoh claims ending the meeting by shouting: “Get out of my office [N-word].”
Ayissi-Etoh became ill after leaving the Vice President’s office and went to a doctor who diagnosed him with an anxiety disorder and prescribed medication. The next day, Ayissi-Etoh emailed Fannie Mae’s CEO regarding the incident. Ayissi-Etoh also complained about his previous meeting with the Chief Audit Executive. Additionally, Ayissi-Etoh complained about his direct supervisor, whom he argued with on a regular basis about being assigned staff-level work that he had performed prior to his promotion. Ayissi-Etoh’s direct supervisor had documented performance deficiencies prior to Ayissi-Etoh’s complaints to both the Chief Audit Executive and the Vice President.
Fannie Mae hired an external firm to perform an investigation, which ultimately found that the Vice President had said a “highly offensive racial slur.” The Vice President was immediately terminated; however, throughout the investigation, which lasted approximately three months, Ayissi-Etoh was required to continue to work under the Vice President.
Ayissi-Etoh filed an EEOC complaint alleging race discrimination in his pay and racial harassment. Ayissi-Etoh alleged that his direct supervisor gave him an ultimatum to either drop his EEOC complaint or be terminated. Three weeks following the alleged ultimatum, Ayissi-Etoh was terminated. Ayissi-Etoh subsequently filed suit for, among other things, discrimination, harassment, and retaliation.
The trial court granted summary judgment in favor of Fannie Mae on Ayissi-Etoh’s harassment complaint. The court of appeals reversed, finding that there was an issue for trial on whether actionable harassment occurred. In so finding, the court stated that the Chief Audit Executive’s comments, in addition to the Vice President’s use of the racial epithet and Fannie Mae’s delay in separating Ayissi-Etoh from the Vice President, could be deemed to be actionable racial harassment. The court also stated that a single one of these incidences might well have been sufficient to establish a hostile work environment. Furthermore, the court rejected Fannie Mae’s defense that it had a policy to deal with harassment and did ultimately take action against the alleged harasser, because the individuals who allegedly made the comments were clearly supervisors.
Ayissi-Etoh v. Fannie Mae elicits a few lessons for employers dealing with harassment:
- All personnel must be trained on what constitutes harassment – although everyone should know that racial epithets cannot be uttered.
- Applicable state and federal harassment law provides for a defense against harassment claims where the employer (1) has taken reasonable care to prevent and promptly correct hostile behavior and (2) the employee unreasonably failed to take advantage of the employer’s preventive corrective measures. As such, employers should review their handbooks and policies to ensure that they have a valid policy in place against harassment that allows employees to make complaints. Such a policy will allow the employer to defend instances of harassment.
- When an employer becomes aware that an employee has alleged that another employee has used offensive language, it should investigate the matter immediately and take appropriate action.
- When an employer conducts an investigation, the alleged harasser and harassee should be always be separated for the duration of the investigation.