Summary of a Recent
Judicial
Development in
Labor
Discrimination Must Be "Severe & Pervasive" Enough to Affect a
Term or Condition of Employment
Walt McCarterNational AgLaw Center Research Associate
Summary of Decision
In Gill v. ConAgra Poultry Co., No. 07-CV-1091, 2008 WL 4446606 (W.D. Ark. Sept. 30, 2008), the United States District Court for the Western District of Arkansas held that a plaintiff had failed to show disparate treatment and discrimination at his workplace that was severe and pervasive enough to have affected a term or condition of his employment, and therefore granted summary judgment for the defendants.
Background
Plaintiff, an African-American and longtime employee of a ConAgra poultry processing plant, and seven other employees filed a class action suit against ConAgra and Pilgrim's Pride, which purchased ConAgra Poultry in 2003, alleging discrimination in the form of disparate treatment, failure to promote, and a hostile work environment in violation of 42 U.S.C. § 1981 and the Arkansas Civil Rights Act of 1993. Id. at *4. The court denied class certification but allowed the plaintiffs to proceed individually, and the defendants moved for summary judgment. Id. at *5.
The plaintiff, who worked in maintenance, claimed that a Caucasian supervisor harassed him by not recognizing him for the good job he did and by being negative about the maintenance work, and explained that he believed such behavior was racist because he thought the supervisor thought he was "a dummy" even though the supervisor never said so. Id. at *2. He never complained to management or his union about the supervisor's attitude. Id. He also claimed that the supervisor yelled at him once, which he believed was racist because he was a "grown man, not a kid." Id. In 2002, the supervisor assigned everyone in his maintenance department extra jobs to save costs, which the plaintiff claimed was racially discriminatory because most of the maintenance men in that department were African-American. Id. at *3. He also claimed that he had overheard profanity and racial slurs, although he never reported them to anyone and admitted that hearing them did not affect his ability to do his work. Id. at *3-4. He stated that no racial slurs were directed at him. Id. at *4. He also claimed that the bathroom walls were covered in racially offensive graffiti, although none was ever directed at him, he never complained to anyone about it, and he admitted it that did not affect his ability to do his job. Id. He claimed that African-Americans were assigned the bad, "dirty" jobs in the plant, although he admitted that the main plant was overwhelmingly staffed by African-Americans, and there was no evidence that he ever wanted or bid for any "clean" jobs. Id. In over 25 years at the plant, he had never complained to management or the union about racial discrimination. Id.
Arguments
Plaintiff argued that he was subjected to a hostile work environment in violation of 42 U.S.C. § 1981 and the Arkansas Civil Rights Act of 1993. Id.
Analysis and Holdings
"[T]o establish a racially hostile work environment claim, an employee must show that: 1) he was a member of a protected group; 2) he was subjected to unwelcome race-based harassment; 3) the harassment was because of his membership in the protected group; and 4) the harassment affected a term, condition, or privilege of his employment." Id. at *6 (citing Elmahdi v. Marriott Hotel Serv., Inc., 339 F.3d 645 (8th Cir. 2003)). To have affected a term or condition of his employment, the harassment must be severe and pervasive. Id. The court found that two racial slurs in over a 25 year period were not severe or pervasive enough to create a hostile work environment, and stated that "such offhand comments and isolated incidents will not amount to a discriminatory change in the terms or conditions of employment." Id. at *7. The court found nothing inherently racist about the supervisor and plant manager's conduct. Id. at *8. There was no evidence that their behavior was motivated by or based upon race. Id. The court stated that merely "being unpleasant does not affect a term or condition of one's employment." Id. The court likewise found that the graffiti on the bathroom walls was not severe or pervasive enough to affect the terms of the plaintiff's employment. Id. at *9. The court also found that the evidence did not support his claim regarding "dirty" jobs, but instead showed that the "clean" jobs in the main plant were overwhelming held by African-Americans, and some Caucasians also performed the "dirty" jobs. Id. at *10. Therefore, the court granted the defendants' motion for summary judgment. Id.
The case was decided on September 30, 2008.