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Racial Discrimination in The Workplace: Establishing Per Se

Racial discrimination in the workplace is perhaps the most endemic type of discrimination seen in the U.S. today. As a result, several courts have begun to adopt litmus tests, so to speak, to determine when an action constitutes the level of a hostile work environment. The Fourth Circuit, which covers North and South Carolina, has case law on this issue that may be instructive if you find yourself in such a situation. We’ll summarize the main points for you here.

Is One Incident of Racial Discrimination in the Workplace Enough?

Normally, the South Carolina Human Affairs Commission (SCHAC) and Equal Employment Opportunity Commission (EEOC) hold that one isolated incident of discrimination in the workplace is not sufficient to mandate a finding of a hostile work environment. However, the exception to the rule, at least in recent years, has been on issues of race. Cases like Boyer Liberto v. Fontainebleau Corporation (2015) have been handed down by a court that is clearly not interested in preserving environments where any whiff of racist actions may persist. In Boyer-Liberto, a former cocktail waitress brought suit after she was insulted with racist terms by a former supervisor, then threatened with termination after she complained.

The Fourth Circuit overturned a ruling by an en banc panel that had ruled in favor of the employer, arguing that an isolated incident or racial discrimination in the workplace can absolutely poison a work environment, at least on matters of race. The court held that especially on racial matters, the climate is still charged to this day, to a point where an employee’s ability to perform their job may be affected by such an event, even if it is in theory isolated.

Circuits Split On Racial Discrimination

While this has been the policy of the Fourth Circuit in recent years, not every circuit has followed suit. The Seventh recently handed down a decision in Cole v. Bd of Trustees of N. Ill. University (2016) wherein a male supervisor of color alleged that he found a noose among his belongings and equipment while at work. He brought suit, alleging that this was such an inflammatory act that it per se created a hostile work environment. The court dismissed the majority of his claim, holding that such a display might constitute an unreasonably hostile work environment, but there was not enough evidence to conclude that it must.

Normally, when a circuit split happens, one looks to the Supreme Court to settle the matter. However, the court recently denied certiorari to another case of this type, indicating an unwillingness to issue a final opinion, at least at this point in time. In the absence of a Supreme Court ruling, the circuits will continue to decide matters related to racial discrimination in the workplace for themselves. In South Carolina, this means that the Boyer-Liberto precedent will continue to hold, arguably making it easier to have one’s day in court if they are the victim of racial discrimination in the workplace.

Get Help From a South Carolina Employment Discrimination Attorney

Racial discrimination in the workplace is, unfortunately, alive and well in the U.S. If you believe you have been a victim, consulting a knowledgeable employment discrimination attorney can make a difference. Attorney A. Christopher Potts has been practicing employment law for many years, and will work toward the best result possible for you.

Contact us at our Charleston, SC offices today to set up an appointment.

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