In October 2020, as the U.S. Senate began confirmation hearings for U.S. President Donald Trump’s controversial nomination of Judge Amy Coney Barrett to fill the Supreme Court opening created after the death of Ruth Bader Ginsburg, social media users began circulating a bit of text purportedly reproducing a quotation from Barrett in which she declared that “Being called the N-word does not constitute a hostile work environment”:
Although this statement is directly related to an opinion Barrett wrote while sitting on the U.S. Court of Appeals for the Seventh Circuit in 2019, it is not a direct quotation from what she wrote. In addition, it simplifies more complex reasoning from a legal case in a way that is potentially misleading.
In Smith v. Illinois Department of Transportation, plaintiff Terry Smith, a Black Illinois transportation employee, brought a workplace discrimination lawsuit charging that the department had subjected him to a hostile work environment and fired him in retaliation for his complaints about racial discrimination. Smith lost his case in district court and appealed to the circuit court on which Barrett sat, where a three-judge panel (including Barrett) unanimously upheld the district court’s ruling:
During his probationary employment period, Smith challenged and failed to follow directions, was confrontational, engaged in unsafe conduct, and received unsatisfactory evaluations. He filed internal and union complaints, alleging abusive language, docking his hours, and racial discrimination. The Illinois Department of Transportation discharged Smith. Smith sued the Department under Title VII, arguing that it had subjected him to a hostile work environment and fired him in retaliation for his complaints about racial discrimination … Given the extensive evidence that Smith was not meeting his employer’s legitimate expectations, a reasonable jury could not find that the Department fired him because of his protected activity rather than for his poor performance nor could a reasonable jury have resolved the hostile work environment claim in Smith’s favor.
One of incidents Smith included in his case as evidence of his allegedly being subjected to race-based harassment that created a hostile work environment was his claim that a former supervisor named Lloyd Colbert called him the N-word.
Barrett dismissed that claim in her opinion, but not by flatly stating that “Being called the n-word does not constitute a hostile work environment.” Barrett’s point was much more nuanced. According to Barrett, at the time Smith said he was called “stupid ass n******” by a former supervisor, his relationship with his supervisors had long since become a contentious one for a multitude of reasons, and that single incident was not sufficient to support a claim of a racially-hostile work environment:
Because Smith introduced no evidence that his supervisors swore at him because he was black, the profanity that he describes does not establish a hostile work environment under Title VII.
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)). That said, Smith can’t win simply by proving that the word was uttered. He must also demonstrate that Colbert’s use of this word altered the conditions of his employment and created a hostile or abusive working environment. Huri, 804 F.3d at 834. And he must make this showing “from both a subjective and an objective point of view.” EEOC v. Costco Wholesale Corp., 903 F.3d 618, 625 (7th Cir. 2018). In other words, he must show not only that a reasonable person would find the workplace hostile or abusive as a result of Colbert’s slur, but also that he himself perceived it that way. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998).
We need not address the objective prong of the analysis, because Smith falters on the subjective prong. He introduced no evidence that Colbert’s use of the n-word changed his subjective experience of the workplace. To be sure, Smith testified that his time at the Department caused him psychological distress. But that was for reasons that predated his run-in with Colbert and had nothing to do with his race. His tenure at the Department was rocky from the outset because of his poor track record. He clashed with his supervisors over pay, and they confronted him with foul language. As early as August — the first month of his employment — he sent memoranda to the Department complaining of a “hostile work environment.” On Smith’s own account, his supervisors made him miserable throughout his employment at the Department. But as we have already discussed, he has no evidence that his supervisors were lashing out at him because he was black.
Thus, Barrett’s reasoning might be more accurately paraphrased as, “Being called the N-word does not necessarily in itself constitute a hostile work environment.”
The Associated Press noted that one of Barrett’s likely soon-to-be colleagues on the U.S. Supreme Court, Brett Kavanaugh, had reasoned quite differently several years earlier:
A possible colleague of Barrett’s took a different view on racial slurs in 2013. Justice Brett Kavanaugh, then serving as a federal appeals court judge in Washington, D.C, said one utterance was enough. “But, in my view, being called the n-word by a supervisor … 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,’ ‘pure anathema to African-Americans,’ and ’probably the most offensive word in English,” Kavanaugh wrote. “No other word in the English language so powerfully or instantly calls to mind our country’s long and brutal struggle to overcome racism and discrimination against African-Americans. In short, the case law demonstrates that a single, sufficiently severe incident may create a hostile work environment actionable” under federal anti-discrimination laws.