If someone calls you a "stupid white bitch" at work, that's discrimination, right? Not so fast, said a Maryland Federal Court recently in Alexander v. Bloomingdale's, Case 8:17-cv-03283-PWG.
Elizabeth Alexander, a white woman, worked as a sales associate at Bloomingdale’s for seventeen years. Ultimately, her employment was terminated for performance issues. She sued Bloomingdale’s, alleging that a number of interactions with non-white co-workers created a "hostile work environment" and that she was subject to discrimination and retaliation.
The federal court entered summary judgment in favor of Bloomingdale’s, holding that Ms. Alexander could not prevail on any of her claims as a matter of law.
Some of the things that Ms. Alexander alleged that her black co-workers did or said to her:
they told Ms. Alexander that she was "the most despicable person she ever met," that she "should watch out for herself," and that she was a "stupid white bitch"
they broke her phone into pieces
they followed her home in a car and made intimidating gestures and faces in the parking lot
they told her that "You don’t know what I can do for (sic) you outside of Bloomingdale’s. And you can be very sorry, and nobody will find you. And I am telling you the last time, and I know so many people."
they referred to Ms. Alexander as a "trash woman"
The court dismissed Ms. Alexander's lawsuit at the summary judgment stage. It noted that even though the employees that Ms. Alexander complained about were all a different race than Ms. Alexander, only one of the comments was explicitly race-based.
The court also noted that while it has held in other cases that the addition of a racial identifier to an otherwise race-neutral insult (such as “black motherf---ers,” “black bastards,” and “black Fresh Princes of Bel-Air”) could state a claim for a hostile work environment, in this case the totality of the circumstances could not support a finding of a racial animus. It pointed to the fact that while Ms. Alexander felt that the comments were based on her race, she did not know for sure, and that some of the actions were due to jealousy, not race.
The court also noted that there was a long period of time (two years) between the "stupid white bitch" comment and the other alleged hostilities, suggesting that the actions were not raced-based.
The court drew a line between a comment by a co-worker like "stupid white bitch" and the use of the racial slur by a supervisor like "porch monkey." It held that the one-time use by a co-worker of the term "stupid white bitch" in this circumstance was not sufficiently severe to establish a hostile work environment claim on its own, while the use by a supervisor of a different term could be severe enough.
Actionable hostility requires more than a mere utterance of an offensive epithet or simple teasing and offhand comments, though an isolated incident of harassment can be actionable if extremely serious.
To be sure, there were a number of other issues that the court considered and evaluated. Importantly, the court reviewed Bloomingdale's actions after it learned about the alleged harassment (I bet they had a great complaint reporting procedure!).
The court found that Bloomingdale's acted appropriately in investigating when allegations were made and by issuing discipline for complaints that were substantiated. In the end, the court found that Bloomingdale's took appropriate action, noting that an employer's good faith investigation of alleged harassment may be sufficient to prevent liability even if the investigation turns up no evidence of harassment and a jury later concludes that in fact harassment occurred.
It should come as no surprise that Ms. Alexander appealed this decision, which is pending. It will remain to be seen how the appellate court views the district court's opinion. In the meantime, employers would be well-served to follow Bloomingdale's lead in this case by taking all allegations of discrimination or harassment seriously, conducting unbiased investigations, and taking action as appropriate when complaints are substantiated.
UPDATE: On October 27, 2019, the United States Court of Appeals for the Fourth Circuit affirmed the trial court's opinion dismissing Ms. Alexander's lawsuit.