Appellate Court Rules a Six-Year-Old Can Create a Racially Hostile Work Environment
July 31, 2023
In Chapman v. Oakland Living Ctr., Inc., 48 F.4th 22 (2022), the United States Court of Appeals for the Fourth Circuit considered whether the six-year-old son of a company supervisor and the grandson of the company’s owners could create a racially hostile work environment by calling an employee the n-word three times. The appellate court also examined whether the lower court erred in failing to consider other discriminatory acts allegedly perpetrated by the employer as background evidence in support of a racially hostile work environment. The Fourth Circuit answered both questions in the affirmative.
Tonya Chapman was employed by Oakland Living Center, Inc. (“OLC”), from 2004 to 2015 and again in 2018. One day in July 2018, the six-year-old grandson of OLC’s owners was making cupcakes with Chapman in OLC’s kitchen. When Chapman refused to give the six-year-old more cupcakes, he hit and kicked Chapman and told her, “My daddy called you a lazy ass black n****, because you didn’t come to work.” The boy’s father was a supervisor at OLC and was being groomed to take over ownership from his parents. Chapman did not report the incident to the boy’s father or his grandparents, but claimed to have reported it to a co-worker whom she believed was her supervisor. Apparently, this incident was not reported to the father or grandparents of the six-year-old boy.
In August 2018, the six-year-old boy again referred to Chapman as the n-word and Chapman again reported the incident to the same co-worker, as well as the boy’s father. The boy’s father reprimanded him (by spanking him outside of Chapman’s view) and tried to force him to apologize to Chapman. Thereafter, however, the father left the boy in the room with Chapman. At some point after his father left, the six-year-old boy again called Chapman the n-word. After finishing her job duties that day, Chapman left the facility and did not return, telling her co-worker that she could not stay.
Chapman filed a charge of discrimination alleging racial discrimination based upon the three n-word incidents. Chapman did not check the box for “continuing action” in her charge and did not reference her earlier employment with OLC, including earlier instances of racial discrimination allegedly perpetrated by OLC’s owners, their son, and other family members. The EEOC issued a right to sue letter and, in the litigation brought by Chapman, she raised for the first time the earlier instances of racial discrimination.
In reversing the lower court, the Fourth Circuit found that the three n-word incidents alone were enough to constitute a racially hostile work environment. The court found that, because of the six-year-old’s relationship with OLC’s owners and his comment that imputed an n-word statement to his father, the question of whether the hostility of the work environment was sufficiently severe or pervasive should be decided by a jury. In addition, because OLC did not have procedures in place to report workplace harassment, the court found that a jury could infer that OLC had constructive knowledge of all three n-word incidents. The court also determined that it was a question for the jury as to whether OLC’s response to the second incident was reasonably calculated to prevent further harassment, where the six-year-old boy’s father spanked him and demanded he apologize, but then left him crying in the room with Chapman.
The Fourth Circuit also held that the lower court erred in excluding from consideration prior instances of racial discrimination outside of the statute of limitations and not raised in Chapman’s charge of discrimination. While those instances were not actionable, they served as relevant background evidence according to the court. In this regard, this evidence could have, for example, assisted the jury with witness credibility and whether it would have been reasonable for Chapman to perceive past discriminatory incidents as confirmation that complaining of such behavior had unwelcome consequences at OLC.
Lastly, the court also addressed Chapman’s constructive discharge claim, acknowledging the new standard articulated by the United States Supreme Court in Green v. Brennan, 578 U.S. 547 (2016), which applies an objective standard of “intolerability,” rather than the prior standard of “deliberateness.” The court remanded the case back to the lower court for an assessment of Chapman’s constructive discharge claim under the proper standard.
The Fourth Circuit’s decision in Chapman is significant because it is an important reminder that third parties (i.e., non-employees), even six-year-old children, can create a hostile work environment for employees. Upon receipt of a report of discriminatory harassment, a company should conduct a prompt and appropriate investigation into the allegations and, if it determines that there may be some merit to the allegations, the company should take appropriate remedial measures that are reasonably calculated to prevent further harassment, which may insulate the company from liability. The court’s decision in Chapman also is a good reminder that employers should provide accessible, clear, and well-written policies to employees that aim to prevent workplace harassment and explain how to report incidents of workplace harassment if they occur. Failure to have adequate policies and procedures in place may result in a court imputing to the employer constructive knowledge of the discrimination, as illustrated by the decision in Chapman. In addition, companies should be mindful that prior instances of alleged harassment that are barred by the applicable statute of limitations may still be relevant to a claim and, therefore, companies may need to consider such prior incidents when defending and assessing a claim.