Can Race-Neutral Conduct Support A Claim Of Racial Harassment?
Updated: Sep 29, 2020
Is it racial harassment to threaten to drag an African American employee behind a truck? Can calling an African American employee a “dumba**” in a company meeting support a claim of racial harassment?
On a superficial level, it may be assumed there is nothing facially racist about such conduct. There is no overt reference to race or any racist slur typical of most racial harassment claims. Federal courts indeed have held that race-neutral conduct, without more, does not support a claim of racial harassment under Title VII of the Civil Rights Act of 1964 (“Title VII”). See Burlington Northern & Sant Fe Ry, Co. v. White, 548 U.S. 53 (2006)(“Title VII, we have said, does not set forth ‘a general civility code for the American workplace’”).
Nevertheless, the U.S. Supreme Court has stressed that, in evaluating a harassment claim, a court must consider the totality of the relevant circumstances. See Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). A court must give careful consideration to “the social context in which particular behavior occurs and is experienced by its target.” See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998).
Even as to race-neutral conduct, therefore, additional questions must be answered by a court in determining the viability of a racial harassment claim.