Canady v. Wal-Mart Stores (8th Cir.) Amicus brief in support of petition for rehearing Apr. 14, 2006 No. 05-1137 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT __________________________________________ MYRON CANADY, Plaintiff-Appellant, v. WAL-MART STORES, INC., Defendant-Appellee. ___________________________________________________ On Appeal from the United States District Court for the Western District of Missouri, Southern Division Hon. Richard E. Dorr, Judge ___________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF CANADY'S PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC ____________________________________________________ JAMES L. LEE GAIL S. COLEMAN Deputy General Counsel Attorney VINCENT J. BLACKWOOD U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, NW, Room 7034 Assistant General Counsel Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov STATEMENT OF COUNSEL I believe, based on a reasoned and studied professional judgment, that this proceeding involves a question of exceptional importance: Whether a supervisor's use of egregious racial slurs to and about a subordinate can so poison the atmosphere that the supervisor's comments alone can create a racially hostile work environment in violation of Title VII. ______________________________ Gail S. Coleman, Esq. TABLE OF CONTENTS STATEMENT OF COUNSEL . . . . . . . . . . . . . . . . . . . . . .i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .1 A. Statement of Facts. . . . . . . . . . . . . . . . . . . . .1 B. District Court Decision . . . . . . . . . . . . . . . . . .3 C. Eighth Circuit's Panel Opinion. . . . . . . . . . . . . . .3 D. Dissenting Opinion. . . . . . . . . . . . . . . . . . . . .4 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 The panel's opinion undermines Title VII enforcement by misapplying the severity prong of the hostile environment analysis to egregious racial slurs made by a supervisor to and about a subordinate. . . . . .5 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM TABLE OF AUTHORITIES Cases Ezell v. Potter, 400 F.3d 1041 (7th Cir. 2005) . . . . . . . . 10 Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . 10 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). . . . . 10, 11 Hocevar v. Purdue Frederick Co., 223 F.3d 721 (8th Cir. 2000). .4 Lenoir v. Roll Coater, Inc., 13 F.3d 1130 (7th Cir. 1994). . . 11 McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004) . 5, 6 Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991) . . . . . . . . . . . . . . . . . . . . . . . 10 Rocha Vigil v. City of Las Cruces, 119 F.3d 871 (10th Cir. 1997) (denying petition for reh'g) (Lucero, J., dissenting)7 Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668 (7th Cir. 1993)7, 10 Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001). . .7 Swinton v. Potomac Corp., 270 F.3d 794 (9th Cir. 2001) . .6, 7, 8 Taylor v. Metzger, 706 A.2d 685 (N.J. 1998). . . . . . . . .8, 10 Statutes Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. . . . . . . . . . . . . . . . . . . . . . . .1 Other Authorities Okianer Christian Dark, Racial Insults: "Keep Thy Tongue From Evil," 24 Suffolk U. L. Rev. 559 (Fall 1990). . . . . . . . . . . . . .6 Okianer Christian Dark, Racial Insults: "Keep Thy Tongue From Evil," 24 Suffolk U. L. Rev. 559 (Fall 1990). . . . . . . . . . . . . .6 Richard Delgado, What if Brown v. Board of Education Was a Hate-Speech Case? 1 Stan. J. Civ. Rts. & Civ. Liberties 271 (Apr. 2005) (Book Review) 6 Anna Ditkoff, Jockeying for Respect, Baltimore City Paper, Jan. 21, 2004 (Book Review), available at http://www.citypaper.com/arts/story.asp?id=50069 Michele Goodwin, Nigger and the Construction of Citizenship, 76 Temp. L. Rev. 129 (Summer 2003) . . . . . . . . . . . . . . .6 David Pilgrim and Phillip Middleton, Nigger and Caricatures, Ferris State Univ. Museum of Racist Memorabilia (Sept. 2001), available at http://www.ferris.edu/jimcrow/caricature/ 6 Wikipedia, the Free Encyclopedia, Nigga (April 2006), available at http://en.wikipedia.org/wiki/Nigger. . . . . . . . . . . . . 2, 8 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is charged by Congress with interpreting, administering, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This case raises an important issue related to Title VII: the degree to which racial slurs made by a supervisor to and about a subordinate can, without more, create a racially hostile work environment. Given the importance of this issue to effective enforcement of Title VII, the EEOC offers its views to the Court. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. STATEMENT OF THE ISSUE Did the panel misapply the severity prong of the hostile environment analysis when evaluating the impact of racial slurs made by a supervisor to and about a subordinate employee? STATEMENT OF THE CASE A. Statement of Facts Myron Canady, an African American, was a produce associate at the Springfield, Missouri, Wal-Mart for six months until he was terminated in December 2001. Paul Smith, who was white, was Canady's direct supervisor. 440 F.3d at 1033. Shortly after meeting Canady, Smith told him that his own reputation in the store was that of a "slave driver." Canady complained about this comment to Smith's supervisor and one week later Smith apologized to Canady. Id. Later that summer, in front of several of Canady's white co-workers, Smith asked Canady, "What's up, my nigga?" When he said this, Smith attempted to mimic Jackie Chan in the movie Rush Hour. Id. In that movie, Chris Tucker (an African American actor) enters an all-black bar with Jackie Chan. Tucker says this phrase to the African American bartender and gets a benign reaction. Later, Chan repeats the line to the same bartender while affecting an African American dialect. Chan's comment immediately provokes a riot. Wikipedia, the Free Encyclopedia, Nigga (April 2006), available at http://en.wikipedia.org/wiki/Nigger [hereinafter Wikipedia]. Several weeks after Smith attempted his Jackie Chan impersonation, Canady complained to Smith's supervisor about this comment, too. Smith then apologized once again. 440 F.3d at 1033. Canady also introduced evidence that Smith referred to him on several occasions as a "lawn jockey," said that all African Americans look alike, and remarked that his skin color seemed to wipe off onto towels when he sweated. Id. Although Smith did not make all of these comments directly to Canady, all of the comments were specifically about him. Id. at 1036 (Lay, J., dissenting). B. District Court Decision Canady sued Wal-Mart for a racially hostile work environment. The district court granted Wal-Mart's motion for summary judgment. (R.78, Slip Op.) The court emphasized that "the [N] word was used only one time, and in the context of a quote from a Jackie Chan movie." (Id. at 10.) The court also noted that "the comments of ‘lawn jockey' and generalization of all African Americans looking alike are assumed to have been made, but there is no record of when, how frequent, or even the context of the remarks." (Id. at 11.) Observing that Canady had not been threatened or physically harmed, the court concluded that Smith's comments were "more akin to racial insensitivity and off-hand comments than racial harassment." (Id. at 12.) C. Eighth Circuit's Panel Opinion On appeal, this Court affirmed the award of summary judgment. The Court held that Canady could not establish that his workplace "‘was permeated with discriminatory intimidation, ridicule, and insult.'" 440 F.3d at 1035 (quoting Elmahdi v. Marriott Hotel Servs., Inc., 339 F.3d 645, 653 (8th Cir. 2003)). "Taking Canady's allegations as true," the Court said, "Smith's comments were offensive, but insufficient to meet the threshold of actionable harm." Id. The Court emphasized that Smith had apologized for two of his remarks and that he did not repeat either of those comments after apologizing. Id. "In light of these facts," the Court said, "we conclude that, however ill-chosen Smith's comments, including his other earlier- described racially tinged statements, and however ill-advised his attempts at racial humor, Smith's conduct did not give rise to an actionable claim of racial hostility." Id. D. Dissenting Opinion Judge Lay dissented and warned that "the majority opinion sets a new and dangerous precedent for this circuit." Id. (Lay, J., dissenting). Reviewing the evidence, Judge Lay noted that "this is not a case where a singular, isolated comment is the source of plaintiff's action." Id. at 1036. He noted that Canady's supervisor had called himself a "slave driver" when he first met Canady, and that he continued to repeat racially humiliating epithets throughout the course of Canady's seven month employment. Id. He also emphasized that "harassment by a supervisor ‘has a greater power to alter the environment' than similar actions of mere co-workers." Id. (quoting Hocevar v. Purdue Frederick Co., 223 F.3d 721, 728 (8th Cir. 2000)). Judge Lay rejected the majority's reliance on Smith's apologies. "Although apologies, to be sure, must be factored into the hostile work environment calculus," he said, they are by no means a panacea for harassment that has already occurred." Id. Noting that Smith had made numerous racially offensive remarks for which he had not apologized, Judge Lay concluded that "Smith's apology, in this instance, does little to change the severity [or] pervasiveness of the racial harassment Canady was forced to endure." Id. ARGUMENT The panel's opinion undermines Title VII enforcement by misapplying the severity prong of the hostile environment analysis to egregious racial slurs made by a supervisor to and about a subordinate. The EEOC believes that the panel's opinion underestimates the effect of a supervisor's racial slurs to and about a subordinate, and that it sets an impermissibly high standard for proving a racially hostile work environment. We urge this Court to adopt a standard for evaluating racial harassment claims that more fully recognizes the historical and social context of race relations in this country, the power imbalance that exists between supervisors and their subordinates, and the inflammatory nature of certain racial epithets – specifically, the degrading and dehumanizing impact of the N-word. As the Ninth Circuit has recognized, "Racially motivated comments or actions may appear innocent or only mildly offensive to one who is not a member of the targeted group, but in reality may be intolerably abusive or threatening when understood from the perspective of a plaintiff who is a member of the targeted group." McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 (9th Cir. 2004). This is especially true of the N-word, which, perhaps more than any other, "evok[es] a history of racial violence, brutality, and subordination. This word is ‘perhaps the most offensive and inflammatory racial slur in English . . . a word expressive of racial hatred and bigotry.'" Id. (quoting Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th Cir. 2001)). One scholar explains the import of the N-word as follows: "Nigger" was the word kissing the air as families were auctioned throughout the American South. It hovered below black lynched bodies and accompanied civilian and police brutality against blacks throughout the last century. It was the word used by Sheriff Clarence Strider each day during the trial against two white men accused [of] (acquitted, but later confessing to) brutally slaying fourteen year-old Emmit Till. Neither man ever served time for the murder. Sheriff Strider, the town's law enforcement official, greeted black court reporters and Till's mother each day with, "hello niggers." Michele Goodwin, Nigger and the Construction of Citizenship, 76 Temp. L. Rev. 129, 193 (Summer 2003); see also David Pilgrim and Phillip Middleton, Nigger and Caricatures, Ferris State Univ. Museum of Racist Memorabilia (Sept. 2001), available at http://www.ferris.edu/jimcrow/caricature/ ("Nigger is the ultimate expression of white racism and white superiority, irrespective of the way it is pronounced."); Okianer Christian Dark, Racial Insults: "Keep Thy Tongue From Evil," 24 Suffolk U. L. Rev. 559, 566 (Fall 1990) ("‘Nigger' dredges up the entire history of America's legal dehumanization of blacks in slavery."); Richard Delgado, What if Brown v. Board of Education Was a Hate-Speech Case? 1 Stan. J. Civ. Rts. & Civ. Liberties 271, 278 & n.94 (Apr. 2005) (Book Review) ("[T]he English language contains no correlate for nigger in the lexicon of terms for whites." Terms such as honkey, cracker, and white trash "do communicate that the black dislikes the white. But, by themselves they do not carry an implied threat nor call up and evoke long histories of oppression."). Several, though not all, courts already recognize the negative impact of the N- word in the workplace. The Fourth, Seventh, and Ninth Circuits all have recognized that a single utterance of this racial epithet may be enough to create a hostile work environment. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) ("Far more than a ‘mere offensive utterance,' the word ‘nigger' is pure anathema to African Americans."); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) ("Perhaps no single act can more quickly ‘alter the conditions of employment and create an abusive working environment' than the use of an unambiguously racial epithet such as ‘nigger' by a supervisor in the presence of his subordinates.") (citations omitted); Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th Cir. 2001) ("nigger" is "‘perhaps the most offensive and inflammatory racial slur in English, . . . a word expressive of racial hatred and bigotry'") (quoting Merriam- Webster's Collegiate Dictionary 784 (10th ed. 1993)); see also Rocha Vigil v. City of Las Cruces, 119 F.3d 871, 873 n.3 (10th Cir. 1997) (denying petition for reh'g) (Lucero, J., dissenting) ("The cautionary language of Meritor does no more than point out that the single utterance of a term that engenders offensive feelings cannot substantiate a hostile work environment claim. That does not mean that severely degrading, racially derogatory insult of the worse kind escapes actionability under Title VII simply because it is used only occasionally."); Taylor v. Metzger, 706 A.2d 685, 693-94 (N.J. 1998) (holding that a single derogatory racial comment from a supervisor to a subordinate can create a hostile work environment under state law whose standards parallel those of Title VII). In the instant case, the undisputed evidence shows that Canady's white supervisor said to him, in front of white coworkers, "What's up, my nigga?" 440 F.3d at 1033. The panel majority minimizes the import of this comment by noting that Smith was attempting to mimic Jackie Chan in the film Rush Hour, characterizing his statement as an "ill-advised . . . attempt[] at racial humor," and observing that he apologized to Canady. Id. at 1033, 1035. None of these observations diminishes in any way the hostile impact of a white supervisor's using the N-word to an African American subordinate. The panel failed to note that, in the movie Rush Hour, Chan's use of the N- word so offended his African American listeners that it prompted an immediate riot. Wikipedia, supra, at Nigga. In quoting Chan to Canady, therefore, Smith must have been aware of the inflammatory nature of the "what's up" statement. Even if Smith was "joking," he had to know that Canady would be deeply offended. See Swinton, 270 F.3d at 799 ("Although much of what happened here was characterized as ‘jokes,' neither the discrimination nor the jury verdict is a laughing matter."). The panel majority also misapprehended the significance of Smith's apology, which is likewise inadequate to alleviate the impact of the racial harassment. Smith did not apologize to Canady until after Canady complained to Smith's supervisor, and the apology did not come until several weeks after Smith originally made the offensive comment. An apology that is neither timely nor spontaneous cannot undo the damage that an egregious racial insult has already caused. The panel majority also failed to note the cumulative effect of Smith's repeated racial insults. Over the course of only seven months, in addition to calling Canady the N-word, Smith referred to himself as a "slave driver," repeatedly referred to Canady as a "lawn jockey,"<1> commented that all African Americans look alike, and remarked that Canady's skin color seemed to wipe off onto towels when he sweated. 440 F.3d at 1033. Far from being a case where a plaintiff seeks to impose liability based on a coworker's single use of an egregious racial epithet, this is a case where a supervisor coupled an egregious epithet with a repeated barrage of hateful racial jokes and commentary directed to and at a subordinate. See Rodgers, 12 F.3d at 675 ("‘A holistic perspective is necessary, keeping in mind that each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment created thereby may exceed the sum of the individual episodes.'") (quoting Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1524 (M.D. Fla. 1991)). The fact that the invectives came from Canady's supervisor rather than his coworkers only heightened their impact. See Faragher v. City of Boca Raton, 524 U.S. 775, 803 (1998) (recognizing that, unlike with coworker harassment, employees are not free to walk away when their supervisor is the harasser); Rodgers, 12 F.3d at 675 ("a supervisor's use of the term impacts the work environment far more severely than use by co-equals"); Taylor, 706 A.2d at 691 (severity of slur is "exacerbated by the fact that it was uttered by a supervisor"). The Supreme Court has made clear that an actionable hostile work environment requires a finding of either severe or pervasive harassment. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Harassment that is especially severe need not be pervasive in order to impose liability under Title VII. See Ezell v. Potter, 400 F.3d 1041, 1048 (7th Cir. 2005) ("in the case of racial and ethnic slurs, some words are so outrageous that a single incident might qualify for a hostile environment claim"); Taylor, 706 A.2d at 690 ("The standard contemplates conduct that is either severe or pervasive. Although the conduct may be both, only one of the qualities must be proved in order to prevail. The severity of the conduct may vary inversely with its pervasiveness."). Here, Canady has offered evidence that, if proved, would demonstrate that his supervisor poisoned his workplace with repeated comments whose purpose and effect was to denigrate Canady on the basis of his race. Title VII protects employees from having to tolerate such an abusive working environment. CONCLUSION The EEOC urges the Court to reexamine this case not in the light of its own previous case law, but from a perspective that accounts for the actual impact of racial slurs on members of a minority group. The Supreme Court's warning that a hostile work environment requires more than a "mere offensive utterance," Harris, 510 U.S. at 21, should have no bearing on a case involving a supervisor's use of egregious racial insults to and about a subordinate. Such insults cannot properly be characterized as "mere offensive utterances." To the contrary, they are powerful terms whose use can contaminate the environment. "[D]erogatory terms such as ‘nigger' have no place in the employment setting." Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1133 (7th Cir. 1994). We believe this case presents an opportunity for the Court to make this clear. For the reasons stated above, the EEOC urges this Court to grant the petition for rehearing and/or the suggestion for rehearing en banc. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ________________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 29(d), 32(a)(7), and 40(b) because it contains 2547 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Office Word 2003 with 14 point Times New Roman. ________________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF SERVICE I, Carolyn L. Wheeler, hereby certify that I filed this brief with the Court this 14th day of April, 2006, by sending, via Federal Express, 21 paper copies pursuant to Rule 35A(1) of the Eighth Circuit Rules, as well as a computer disk containing a digital version of the brief in PDF format pursuant to Rule 28A(d) of the Eighth Circuit Rules. The diskette has been scanned for viruses and is virus- free. I also certify that I served two paper copies of the brief and one digital copy of the brief this 14th day of April, 2006, by first-class mail, postage pre-paid, to the following counsel of record: Les Boyle, LLC 1911 South National Ave., Suite 303 Springfield, MO 65804 Denise M. Anderson Anderson Law Group 110 West Ninth St. Kansas City, MO 64105 ________________________________ CAROLYN L. WHEELER Assistant General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7054 Washington, DC 20507 ******************************************************************************** <> <1> “Lawn jockey” is a reference to a yard ornament representing a stereotypical black man with exaggerated facial features. Kenneth Goings, chair of African-American and African Studies at Ohio State University, explains that lawn jockeys “are meant to evoke that old South, grand plantation, Gone With the Wind mythology, and I’m not sure they can evoke anything else.” Anna Ditkoff, Jockeying for Respect, Baltimore City Paper, Jan. 21, 2004 (Book Review), available at http://www.citypaper.com/arts/story.asp?id=5006.