Do Amy Coney Barrett and Brett Kavanaugh Disagree On Whether The N-Word Creates A Hostile Work Environment?

No. Remember: Most Legal Commentary Is Dumbed Down And Misleading.

Amy Coney Barrett’s nomination to the United States Supreme Court is controversial, and legitimately so for many reasons. But, as is almost always the case with judicial candidates, not every criticism of her record is well-informed or honest. Yesterday’s example was a wildfire narrative that Barrett says that calling an African-American the n-word at work does not create a hostile work environment, and that this position is so extreme that even Brett Kavanaugh disagrees with it.

Is this true? Only in a very tendentious, misleading sense. Or, more accurately, no, it’s not true.

Let’s start with Title VII of the Civil Rights Act of 1964. It prohibits discrimination in accommodations or employment on the basis of race or sex. (Title VII was designed as a law against racial discrimination; sex is probably only in there because a Virginia segregationist threw it in as a poison pill maneuver that backfired. They’re not the best or the brightest, those people.) Over the years, courts recognized that discrimination can take the form not only of things like hiring and firing based on race or sex, but also sexual or racial harassment so bad that it changes the nature of the job. You mostly hear about it in the context of sexual harassment claims, but Title VII also prohibits racial harassment at work.

Contrary to talk radio narrative, it’s quite difficult to prove sexual or racial harassment based on a hostile workplace environment theory. The harassment must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Moreover, that requirement has both subjective and objective requirements — the plaintiff must prove that a reasonable person would feel that way and that they personally felt that way. “Severe or pervasive” means that the harassment can be a single really bad incident or a series of not-as-bad incidents. Courts spend substantial amounts of time analyzing whether alleged conduct is severe or pervasive enough to support a harassment claim under Title VII.

Enter Judge Barrett, sitting as a judge on the United States Court of Appeals for the Seventh Circuit in Terry Smith v. Illinois Department of Transportation. The Illinois DOT fired Smith after his extremely contentious probationary period, and he sued under Title VII, claiming the DOT had created a racially hostile work environment and retaliated against him for complaining about it. The district court granted summary judgment against Smith (that is, found that the evidence he offered was insufficient as a matter of law to support his claim) and Judge Barrett wrote the opinion affirming that decision. Here’s what she said about his claim that DOT created a hostile work environment based on his supervisor directing the n-word at him:

Smith describes one incident, however, that plainly constitutes race-based harassment: Colbert, one of his former supervisors, called Smith a “stupid ass ni[]” after finding out that Smith had filed a complaint with the Equal Employment Opportunity office. The n-word is an egregious racial epithet. Nichols v. Mich. City Plant Planning Dep’t, 755 F.3d 594, 601 (7th Cir. 2014) (“[W]hile there is no ‘magic number of slurs’ that indicates a hostile work environment, an ‘unambiguously racial epithet falls on the more severe end of the spectrum.’” (citation omitted)).

So: Barrett acknowledged, as precedent required, that using the n-word at an employee is racial harassment and that one single use of the n-word can, in some cases, be severe enough to support a Title VII hostile environment claim. She continued with an analysis of the rest of the requirements of a hostile environment claim. To sum up, she wrote that Smith did not present evidence that this incident of a racist supervisor using the n-word in the last two weeks of his employment altered his already very contentious relationship with his employer:

Put differently, Smith has to be able to persuade a jury that Colbert’s race-based harassment was severe enough “to alter the conditions of [his] employment.” Huri, 804 F.3d at 834 (emphasis added). Smith did not even try to make that showing—he points to no evidence that Colbert’s slur caused him either additional or different distress. Without evidence that Colbert’s outburst changed Smith’s subjective experience during his last two weeks at the Department, a reasonable jury could not resolve the hostile work environment claim in Smith’s favor.

To resist a summary judgment motion you have to offer admissible evidence supporting each and every element of a claim — including, for instance, the element that workplace racism had a subjective impact on you that altered the conditions of employment. It would have been trivially easy to defeat summary judgment by clarifying Smith’s testimony or submit a declaration saying “the workplace was already horrible but it really changed when a supervisor used a word denying my humanity, at which point it became permanently inimical to me as a person.” But Smith didn’t do that.

You could argue that the trial court, Barrett, and the two judges who voted with her should have simply presumed Smith’s subjective reaction to the incident even though he didn’t submit specific evidence about it, but that’s not the law. You might also argue with the parsing of other facts about whether there was racial harassment in the workplace, but that’s not what the criticism has focused on.

Now let’s shift to Kavanaugh. In 2013 Kavanaugh, sitting on the United States Court of Appeals for the D.C. Circuit, wrote a concurring opinion in a Title VII ruling against Fannie Mae. The Court reversed a summary judgment ruling in Fannie Mae’s favor, finding that the plaintiff had submitted enough evidence to support a Title VII racial harassment claim. Kavanaugh wrote separately, and somewhat savagely, to refute Fannie Mae’s argument that a single instance of calling an employee the n-word could never be “severe” enough to create a hostile work environment:

It may be difficult to fully catalogue the various verbal insults and epithets that by themselves could create a hostile work environment. And there may be close cases at the margins. But, in my view, being called the n-word by a supervisor – as Ayissi-Etoh alleges happened to him – suffices by itself to establish a racially hostile work environment. That epithet has been labeled, variously, a term that “sums up . . . all the bitter years of insult and struggle in America,” LANGSTON HUGHES, THE BIG SEA 269 (2d ed. 1993) (1940), “pure anathema to African-Americans,” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001), and “probably the most offensive word in English,” RANDOM HOUSE WEBSTER’S COLLEGE DICTIONARY 894 (2d rev. ed. 2000). See generally ALEX HALEY, ROOTS (1976); HARPER LEE, TO KILL A MOCKINGBIRD (1960).

That’s not inconsistent with Barrett’s opinion in the least — both opinions support the argument that a single racial epithet can be severe enough to create a hostile work environment. In the case before Kavanaugh, the plaintiff presented evidence that being forced to work with a co-worker who called him the n-word made him physically ill, requiring medical treatment. In the case before Barrett — at lest according to the trial court and the three-judge panel — the plaintiff didn’t offer such evidence of subjective reaction.

You could argue that it’s too hard to prove racial or sexual harassment under Title VII, that the “severe or pervasive” bar is too high, that judges are too skeptical of claim, or that the system doesn’t provide the resources necessary for litigants to pursue meritorious claims. What you can’t argue, if you’re minimally informed or honest, is “Barrett says the n-word doesn’t create a hostile work environment and even Kavanaugh thinks it does.” There are plenty of reasons to oppose Barrett without lying or misinforming people about the law.