Tenth Circuit: Conduct Can Be Hostile, Regardless of Benign Intent

Last month, the Tenth Circuit Court of Appeals ruled that repeated use of the “n-word” and references to “lynching” were sufficiently pervasive to create a hostile work environment when directed toward the only black employee working in the company’s Kansas office. Lounds v. Lincare, Inc. (10th Cir. 2015).

Among the elements to be proved in a hostile work environment claim is the existence of discriminatory conduct sufficiently severe or pervasive to alter the employee’s working conditions. In this case, the conduct consisted of references to lynching, “getting ghetto” with troublesome clients, frequent use of the “n-word,” derogatory references to Ebonics, and other unwelcome comments.

The employee, Shawron Lounds, eventually complained and filed suit. The trial court held that the comments were only mildly offensive, not intentionally offensive, or not directed specifically at Lounds. Accordingly, the court granted summary judgment to employer Lincare.

The Tenth Circuit Court of Appeals reversed on the issue of the conduct’s severity or pervasiveness, holding that the issue was not whether coworkers and supervisors intended to offend Lounds, but the effect the comments had on the workplace.

The trial court “discounted the offensiveness of key elements of the conduct based on its conclusions regarding the ostensibly benign intent of the alleged harassing actors,” the court of appeals wrote. “A district court’s assessment on summary judgment of whether a workplace environment is sufficiently polluted for purposes of a … claim should not be based on whether an alleged harasser possessed the motivation or intent to cause discriminatory harm or offense.” Accordingly, the court reinstated Lounds’s hostile work environment claim.

This case should remind employers that the “effect” of harassing conduct is every bit as important as its “purpose.”