Racist tirade by drunk Mayor is not a hostile work environment

Is it a hostile work environment when you boss makes racist comments off-duty? What about when he makes racist comments off-duty, but he is physically inside the workplace? The Court of Appeals resolved these issues in a case involving the Mayor of the Village of Moncticello.

The case is Johnstone v. Village of Monticello, a summary order decided on April 28. I argued the appeal. Johnstone is a white police officer who arrested the Mayor, Jenkins, who is black, for for driving while intoxicated. While Johnstone was processing the Mayor at the police station, Jenkins launched a racial tirade against Johnstone and other white officers. The video of this incident is at this link. Johnstone alleges -- but the Second Circuit ruling does not mention -- that Jenkins also threatened the employment of the white officers. Johnstone sued the Mayor and the Village for a racially hostile work environment.

The district court says Johnstone cannot win the case, and the Court of Appeals (Parker, Jacobs and Walker) agrees. The Court says that "one consideration is the frequency of the alleged abuse, his reliance on a single incident over the course of a nearly 30-year career weighs heavily against
him, although that alone is not dispositive. More significant is that an abusive tirade by a person arrested for driving under the influence is not sufficient "to alter the conditions" of Johnstone's employment. The Court reasons:

Jenkins's alleged comments were severe, but they were not made in the context of an employer addressing an employee in the workplace; they were made by an apparently intoxicated citizen who was belligerent because he was being taken into custody and processed for violating the law. Being subjected to an intoxicated and verbally abusive perpetrator does not alter the conditions of a police officer's employment or create an actionably hostile work environment, even if the person arrested happens to be the mayor.