On July 14, 2017, a panel of the U.S. Court of Appeals for the Third Circuit clarified the standard for hostile work environment harassment claims under 42 U.S.C. § 1981 (“Section 1981”) in Castleberry v. STI Group, 2017 WL 2990160 (3d Cir. July 14, 2017), stating that the correct standard is “severe or pervasive.”
At first glance, this clarification may not seem noteworthy – employees have always been required to demonstrate the severity or pervasiveness of the alleged harassment as part of their prima facie case. However, as the Third Circuit’s opinion reveals, the standard has not been consistently stated in Third Circuit case law.
Atron Castleberry and John Brown, both African-American men, were hired in 2010 by staffing agency STI Group to work as general laborers for Chesapeake Energy Corporation. Castleberry and Brown alleged they were discriminated against and harassed based on their race during their employment with STI Group and Chesapeake when a supervisor told them that if they had “n****r-rigged” the fence, they would be fired. Castleberry and Brown also alleged that someone anonymously wrote on the sign-in sheets, “don’t be black on the right of way.” Castleberry and Brown alleged they were terminated in retaliation for complaining about this conduct.
Castleberry and Brown sued STI Group and Chesapeake for race discrimination, harassment, and retaliation under Section 1981. The district court dismissed Castleberry and Brown’s claims on the basis that “the facts pled did not support a finding that the alleged harassment was ‘pervasive and regular.’” The Third Circuit reversed, in large part, the district court’s holding, and remanded the case back to the district court. In its reversal, the Third Circuit acknowledged that it had not been consistent in applying the standard, and pointed out that it had applied no fewer than three different standards: “severe or pervasive,” “pervasive and regular,” “severe and pervasive.” The Third Circuit noted that on some occasions, it stated one standard and applied another within the same opinion. Observing this inconsistency, the Third Circuit definitively stated that the correct standard is the disjunctive, “severe or pervasive.”
Applying the correct, disjunctive standard, the Third Circuit considered whether the “n****r-rigged” comment was sufficient to state a claim for harassment under Section 1981. The Third Circuit rejected STI Group and Chesapeake’s argument that a single isolated incident is insufficient to create a hostile work environment, stating:
The Supreme Court’s decision to adopt the “severe or pervasive” standard – thereby abandoning a “regular” requirement – lends support that an isolated incident of discrimination (if severe) can suffice to state a claim for harassment … Otherwise, why create a disjunctive standard where alleged “severe” conduct – even if not at all “pervasive” – can establish a plaintiff’s harassment claim? Defendants would have us read that alternative element out of the standard. We may not do so.
Similar conclusions have been reached by other Courts of Appeal, including the Fourth Circuit in Boyer-Liberto v. Fontainbleau Corp., 786 F.3d 264, 268 (4th Cir. 2015), the Eleventh Circuit in Adams v. Austal, U.S.A., LLC, 754 F.3d 1240, 1254 (11th Cir. 2014), the D.C. Circuit in Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013), and the Seventh Circuit in Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993). Thus, the Third Circuit held, a single, isolated incident, such as a supervisor’s use of a racial slur and threat to terminate an employee in the same breath, may be sufficient to state a claim for hostile environment harassment under Section 1981.
Takeaway for Employers
After Castleberry, employees within the Third Circuit may prevail on a Section 1981 claim by alleging that the employer’s actions were either severe or pervasive. The result is that a single, racially charged statement may be sufficient to prove the claim. Section 1981 hostile environment claims are subject to the same analysis as discrimination claims under Title VII and, therefore, employees bringing hostile environment claims under Title VII may also prevail by alleging either severe or pervasive conduct.
It is important to note that the district court decision, which the Third Circuit reversed, was decided on a motion to dismiss, and that the case was remanded back to the district court. As such, it remains to be seen whether, under the facts of this case, Castleberry and Brown will obtain a verdict in their favor on their Section 1981 hostile environment harassment claims. Leech Tishman’s Employment Practice Group attorneys will monitor this case and provide an update in the event a final verdict or judgment is rendered.
Leech Tishman’s Employment Practice Group has extensive experience advising employers on best practices in workplace harassment investigations, as well as conducting workplace harassment investigations.
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