Hostile work environment claim fails as plaintiff cannot show it was racially-motivated

The plaintiff in this case alleges that he endured a hostile work environment on account of his race. The Court of Appeals finds the work environment may have been unpleasant, but that it was not because of race. This case is important because it involves a fact pattern that arises from time to time: a plaintiff is treated badly and claims it happened because of race, gender, or age. But the courts want you to produce evidence of these discriminatory motivations that many plaintiffs are unable to deliver.

The case is Tassy v. Buttigieg, issued on October 20. When the plaintiff began working for the Federal Aviation Administration in Farmingdale, Long Island, a Black manager (Anderson) told plaintiff (who is also Black) that he needed to "be careful," pointing to plaintiff's black skin.The manager was referring to a White employee who worked at the front desk. Over the course of his employment, plaintiff was then denied certain on-the-job training, though one trainer who worked with plaintiff was particularly rough on plaintiff, though the trainer was known to be difficult "with all people." Another trainer embarrassed plaintiff by repeatedly and loudly stating that plaintiff had failed an exercise. Another trainer mostly ignored plaintiff but did not make any racial comments. On top of all this, plaintiff says, several employees never greeted him when he came to work, one inspector was rude to plaintiff and falsely reported that plaintiff had used profanity in the office, and a co-worker made a gesture suggesting he thought plaintiff smelled bad. Someone else said that Haitian artwork that plaintiff had posted in the workplace was "a piece of crap."

Is this enough to prove a hostile work environment because of race? Under Title VII, you have to show the harassment was motivated by race and that it was severe or pervasive. The Circuit recognizes that some race-neutral conduct may support a racially-hostile work environment claim if these incidents were part of a pattern of racial harassment. Plaintiff concedes that none of the incidents in this case were overtly racist. The evidence that he does put forward is not enough to support a racial harassment claim. Yes, plaintiff was treated badly. But there was nothing inherently racial about these incidents. I suppose you can argue that these were all micro-aggressions and that the bias was implied, but the courts have not yet adopted that theory under Title VII, to my knowledge.

Here is how the Court of Appeals (Livingston, Pooler and Sack) analyzes the case:

But this evidence is insufficient to create a genuine dispute that the alleged failures to train and the non-overtly-racist office incidents—the alleged failure of co-workers to say “good morning,” for instance, or one office worker’s expression of distaste for Tassy’s artwork—were motivated by hostility to Tassy’s race, color, or national origin, as opposed to any other reason. While Anderson’s earlier comment and gesture to Tassy perhaps suggests that racism was prevalent at the Farmingdale FSDO, the conversation predated Tassy’s employment there and did not refer to any particular person or behavior that Tassy subsequently complained about.  Anderson’s warning about a particular white employee is also insufficient since Tassy does not claim that this employee ultimately harassed him at the Farmingdale FSDO.  And, like Anderson’s comment, Soto’s alleged remark about general “racial issues” in the office, while probative, is insufficient to demonstrate that the particular treatment that Tassy faced was based upon his protected characteristics.  Finally, Anderson’s later suggestion that Tassy’s co-workers might be avoiding Tassy over fears of him filing an EEO complaint against them was mere speculation and cannot support the inference that the employees were actually mistreating Tassy on account of his race.