Near miss: VA escapes liability for employee’s use of ‘egregious racial epithet’

Hostile work environment claims often live and die on whether the alleged conduct is either severe or pervasive. To make that determination, courts look at the “totality of the circumstances,” even when the conduct is reprehensible or egregious. Here’s what the U.S. 7th Circuit Court of Appeals (whose decisions apply to Illinois employers) recently had to say in a case alleging a racially hostile environment.

Scuttlebutt

Elaine Scaife, who is African American, worked as a human resources classifier at the Roudebush Veterans Affairs Medical Center (VA) in Indianapolis. She focused on job classification, determining the appropriate title, series, and pay grade for jobs within the VA.

In September 2016, two coworkers told Scaife that Brian Fogg, who is white, called her the N-word during a meeting in February of that year. He wanted to classify a position at a certain grade level. According to her coworkers, when he heard that she refused to classify the position at that level, he called her a “stupid fucking n***r.”

Scaife also learned from other employees that Fogg had a history of racial insensitivity. She said she was devastated by the comment. She reported it to the VA’s HR officer and later sued the VA in federal court under Title VII of the Civil Rights Act of 1964, alleging a racially hostile work environment and other claims.

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