TABLE OF CONTENTS

Table of Authorities.......................................................................................... ii

Statement of Interest......................................................................................... 1

Statement of the Issues..................................................................................... 1

Statement of the Case....................................................................................... 2

A. Statement of Facts............................................................................. 2

B. District Court Decision...................................................................... 7

Summary of Argument..................................................................................... 9

Argument........................................................................................................ 10

A reasonable jury could find that Daniel endured a hostile work environment within the meaning of Title VII because of his race,

perceived national origin, and/or perceived sexual orientation........... 10

A. A supervisor’s statement “you fucking nigger” to a subordinate is, by itself, sufficiently severe to constitute an actionable hostile work environment within the meaning of Title VII..................................................... 12

B. A reasonable jury could find that Daniel endured “severe or pervasive” harassment because, in addition to calling him the most offensive of racial epithets, his supervisor likened him to a gorilla, mocked his foreign accent, frequently told him to go back to England, and called him “homo” two or three times a week......................................................................... 18

Conclusion...................................................................................................... 26

Certificate of Compliance

Certificate of Service

TABLE OF AUTHORITIES

Cases

Albert-Roberts v. GGG Constr., LLC, 542 F. App’x 62 (2d Cir. 2013)..... 13, 18

Alfano v. Costello, 294 F.3d 365 (2d Cir. 2002).............................................. 25

Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013)............................. 16

Back v. Hastings on Hudson U. Free Sch. Dist., 365 F.3d 107

(2d Cir. 2004)........................................................................................ 22

Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015)

(en banc).......................................................................................... 16, 19

Christiansen v. Omnicom Grp., Inc., No. 16-748 (2d Cir.) (pending).............. 22

Cruz v. Coach Stores, Inc., 202 F.3d 560 (2d Cir. 2000),

overruled in part on other grounds, Swierkiewicz v. Sorema N.A.,

534 U.S. 506 (2002).............................................................................. 24

Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005)........................... 22

EEOC v. Boh Bros. Constr. Co., 731 F.3d 444 (5th Cir. 2013) (en banc)....... 22

Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991)......................................... 11, 15

Ezell v. Potter, 400 F.3d 1041 (7th Cir. 2005)................................................. 16

Faragher v. City of Boca Raton, 524 U.S. 775 (1998)........................ 11, 14, 15

Feingold v. New York, 366 F.3d 138 (2d Cir. 2004)........................................ 24

Gilman v. Marsh & McLennan Cos., 826 F.3d 69 (2d Cir. 2016).................... 23

Green v. Harvard Vanguard Med. Assocs., Inc., 944 N.E.2d 184

(Mass. App. Ct. 2011)............................................................... 12, 15-16

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993)......................................... 10, 19

Howley v. Town of Stratford, 217 F.3d 141 (2d Cir. 2000)............................. 25

Kaytor v. Elec. Boat Corp., 609 F.3d 537 (2d Cir. 2010)................................ 25

Lauderdale v. Tex. Dep’t of Criminal Justice, 512 F.3d 157 (5th Cir. 2007).... 11

Magnusson v. County of Suffolk, No. 16-1876 (2d Cir.) (pending).................. 22

McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004)......................... 17

Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986)...................................... 10, 19

Pa. State Police v. Suders, 542 U.S. 129 (2004).............................................. 15

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)......................................... 22

Reed v. Procter & Gamble Mfg. Co., 556 F. App’x 421 (6th Cir. 2014)......... 16

Richardson v. N.Y. State Dep’t of Correctional Serv.,

180 F.3d 426 (2d Cir. 1999)................................................ 11, 12-13, 18

Rivera v. Rochester Genesee Reg’l Transp. Auth.,

743 F.3d 11 (2d Cir. 2012) ........................................... 11, 12, 13, 14, 18

Rodgers v. W.-S. Life Ins. Co., 12 F.3d 668 (7th Cir. 1993)............................ 15

Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597 (2d Cir. 2006)................. 12

Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000)............................................ 22

Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001)....................... 19

Statutes and Rules

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.................. 1

§ 2000e-2(a)(1)...................................................................................... 10

Fed. R. App. P. 29(a)........................................................................................ 1

Administrative Materials

Baldwin v. Foxx, EEOC Doc. No. 0120133080, 2015 WL 4397641

(EEOC July 15, 2015)........................................................................... 22

Brooks v. Dalton, EEOC Doc. No. 05950484, 1996 WL 375598

(EEOC June 25, 1996).......................................................................... 13

EEOC Compl. Man., Race and Color Discrimination § 15-VII,

2006 WL 4673430 (June 2006)........................................................... 13, 19-20

Miscellaneous

David Pilgrim & Phillip Middleton, Nigger and Caricature,

Ferris State Univ., Jim Crow Museum of Racist

Memorabilia (Sept. 2001, rev. 2012), http://www.ferris.edu/jimcrow/caricature/ 17

Michele Goodwin, Nigger and the Construction of Citizenship,

76 Temp. L. Rev. 129 (Summer 2003).................................................. 17

Nigger Jokes, niggermania.com/niggerjokes/................................................... 14

Okianer Christian Dark, Racial Insults:“Keep Thy Tongue From Evil,”

24 Suffolk L. Rev. 559 (Fall 1990)........................................................ 17

Richard Delgado, What if Brown v. Board of Education

Was a Hate-Speech Case? 1 Stan. J. C.R. & C.L. 271

(Apr. 2005) (Book Review).............................................................. 17-18

“Why Niggers are Not Human,” Vanguard News Network Forum, http://vnnforum.com/showthread.php?t=19818................................... 14

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. The district court agreed that Daniel was subjected to “‘crude and contemptible’ conduct” but held that his mistreatment was not severe or pervasive enough to constitute a hostile work environment under Title VII. R.106, Slip Op. at 24-25. The EEOC believes that the district court imposed too strict a standard for demonstrating severe or pervasive harassment. Because the EEOC has a strong interest in seeing that courts interpret Title VII correctly, it 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 Issues

1. Is a supervisor’s statement “you fucking nigger”[1] to a subordinate sufficiently severe, by itself, to create a hostile work environment within the meaning of Title VII?

2. Could a reasonable jury find that Daniel endured severe or pervasive harassment on the basis of his race, perceived national origin, and/or perceived sexual orientation where, in addition to calling him the most offensive of racial epithets, his supervisor likened him to a gorilla, mocked his foreign accent, frequently told him to go back to England, and called him “homo” two or three times a week?

Statement of the Case

A. Statement of Facts

Otis Daniel is a black man from St. Vincent and the Grenadines, a small island nation in the West Indies. R.65-1, Daniel Dep. at 10, 89. He is gay but did not tell his employer or coworkers this fact. Id. at 247-48. Daniel applied for a position as a fire safety director with T&M, a global security and investigations firm. In February 2011, T&M sent Daniel to interview at a commercial office building that was one of T&M’s clients. Daniel had a joint interview with John Melidones, the building’s security director, and Bill Wood, the assistant property manager. One week after the interview, Daniel was offered the job. Id. at 46-47, 49. His immediate supervisor was Melidones, a white man. Id. at 89, 166.

After Daniel’s first week on the job, Melidones told him that property managers in the area prefer to hire white security personnel and that the reason Daniel was hired was that Wood liked him. Melidones explained that “this type of job is being done nowadays by Indians, Hispanics, and blacks,” and he said that Daniel was hired only because “white people don’t want this job” so there was “no other option out there.” Id. at 81-83. He added that he thought Daniel was being paid too much. Id. at 103.

Shortly after Daniel began his job, Melidones likened him to a gorilla. As Daniel stood at his podium and Melidones walked through the lobby, Melidones told him, “Smile, smile, you look like a gorilla, why the angry face, smile.” Id. at 90.

Throughout Daniel’s employment, Melidones told him that he was stupid and that he was an idiot. Id. at 155. He randomly asked Daniel to define large words, which Daniel understood as a jab at his intelligence. Id. at 92-95.

Melidones insisted that Daniel came from England, which Daniel found offensive. Id. at 92. Melidones continued to insist upon this even after Daniel showed him his birth certificate, because St. Vincent and the Grenadines is a former colony of England and the birth certificate has a picture of Prince Charles and Diana, Princess of Wales. Id. at 95-96. “Every single time” that Melidones spoke to Daniel, he did so with an “imitated English accent.” Id. at 91. “I am not English,” Daniel told him. “[W]hy are you basically speaking to me like that; can you speak to me with your normal tone of voice?” Id. at 95. Melidones asked Daniel why he came to the United States and did not stay in his own country. Id. at 108-09. “Many times” he told Daniel to “go back to England.” Id. at 109. Melidones also sang Calypso. Id. at 132.

From February 2011 through September 2011, Melidones told Daniel two or three times a week, almost every week, “You are not black.” Id. at 89. “I am a person of African descent. I mean, is he color blind?” Daniel wondered. Id. Melidones explained, “You are not black because you don’t wear your pants down your waist, you don’t swagger or you don’t ‘what up.’” Id. at 90. He excused himself for these comments by saying that he used to date black women. Id. at 90. In the presence of coworkers who were black or Indian, Melidones asked Daniel, “What do you think, you are better . . . than these people?” Id.

Daniel’s coworkers openly speculated about his sexual orientation. When the newspaper published an article about a “gay hotel” that had just opened in Times Square, a coworker asked Daniel whether he was going there. Id. at 249. “[T]his is what they are talking about,” Daniel said. “[T]hey are obsessed with oh, he is gay, I think he is gay, oh, he has to be gay, look at him, the way he walks, the way he talks.” Id. at 249.

Melidones “repeatedly” went into the locker room and watched Daniel nap during his lunch break, and he “repeatedly” watched Daniel change his clothes. Id. at 105. One time, as he watched Daniel change, he said, “I didn’t hire you to be beautiful; I want a supervisor, not a God.” Id. at 233-34.

In June or July 2011, Melidones came up behind Daniel while he was standing at his work podium, brushed up against Daniel’s buttocks with his genitalia, and asked Daniel, “Are you gay?” Id. at 230. Daniel immediately moved away. When Melidones saw how upset Daniel was, he “tried to appease [him] by saying his son . . . is gay.” Id.

Subsequently, Melidones stood directly behind Daniel two or three times a week, leaned into him, and said “homo” into Daniel’s ear. Id. at 231-32. While standing behind Daniel, on “numerous occasions” he also said to Daniel’s coworker Manny Padermo (a father and grandfather), “Manny the homo, Manny the homo.” Id. at 231-32, 242. Daniel suspected that Melidones was pointing at him while he said this to Padermo. Id. at 232-33, 243-44.

Melidones’s comments frightened Daniel. “I will let him say what he needs to say, make his remarks [and] inappropriate comments, and all I did [was] stand there at my podium and sweat profusely,” Daniel said. “Sweat profusely in fear of this man . . . in fear of him and in fear of losing my job.” Id. at 154-55.

In September 2011, Daniel switched from the day shift to the night shift to avoid Melidones. Id. at 67, 125. Although the new shift eliminated many of his physical encounters with Melidones, Daniel was required to work “many” double-shifts from 8:00 a.m. until midnight, and he had to work with Melidones at those times. Id. at 67-68, 72-73. Also, Melidones sometimes stayed late, went into the locker room while Daniel was changing, and made “inappropriate remarks.” Id. at 68, 70-72, 122, 150.

Melidones repeatedly called Daniel’s coworkers to ask about Daniel’s whereabouts. Daniel understood that Melidones was keeping track of “this black male in this building that houses millionaires.” Id. at 105-06. His understanding was “confirmed” in December 2011 when, after investigating the theft of a tenant’s computer, Melidones told Daniel, “I have a picture of a black male with a bald head . . . basically, is this you?” Id. at 106-07. “Why would you think I would steal a computer?” Daniel responded. Melidones never showed Daniel the picture that allegedly prompted his question. Id. at 107.

In March 2012, Melidones called while Daniel was working and said, “I am at the Broadway show Mary Poppins. I can see you as Mary Poppins. You will make a good Mary Poppins.” Id. at 234. Daniel inferred that Melidones was telling him, “[Y]ou are English, you are gay, you would make a good woman.” Id. Indeed, Daniel testified that “many times” Melidones told him, “Man up, be a man.” Id. at 68.

During the Presidential campaign of 2012, Melidones asked Daniel, “Are you going to vote for your man, Obama?” Daniel said that he was a registered Republican, and Melidones replied, “I guess you are all right after all.” Id. at 109-10.

In May 2012, Melidones told Daniel to go upstairs to Bain Capital and speak with the office manager face-to-face about a planned employee termination. Daniel spoke with the office manager on the telephone instead. When Melidones learned this, he called Daniel on the phone and screamed at him in a “belligerent, profanity-laced tirade.” Id. at 111-15. “Who told you to call?” Melidones asked. When Daniel tried to respond, Melidones told him, “Shut the fuck up, you fucking idiot. . . . You fucking nigger.” He then slammed the phone down in Daniel’s ear. Id. at 113-15. Daniel could not face Melidones after this and took the next day off, falsely claiming to be sick. Id. at 117. T&M fired Daniel one week later. R.67-2, Separation Notice.

B. District Court Decision

The district court granted summary judgment, holding that Daniel had not raised a genuine issue of material fact over whether he was subjected to “severe or pervasive” harassment. “As a threshold matter,” the court said, “some of the conduct Daniel complains of does not appear to be related to his race, perceived national origin, or sex.[2] Such incidents ‘must be removed from consideration.’” R.106, Slip Op. at 17 (citing Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002)). Included in this category, the court said, are Daniel’s allegations that Melidones repeatedly watched him nap and change clothes in the locker room, that he asked Daniel whether he had stolen a computer, that he asked Daniel to define large words, that he called Daniel stupid, and that Greish “vaguely comment[ed] on his clothing.” Id. at 18-19.

The remaining incidents, the court held, are insufficient to constitute “severe or pervasive” harassment. “[A]s recounted by Daniel,” the court explained, “the incidents ostensibly motivated by his protected characteristics occurred sporadically and relatively infrequently. . . . The ‘episodic’ incidents Daniel endured were not ‘sufficiently continuous and concerted in order to be deemed pervasive.’” Id. at 18-19 (quoting Alfano, 294 F.3d at 374). The court also found it “relevant that the most severe incidents were isolated, whereas Melidones’s more frequent behavior toward Daniel was comparatively benign.” Id. at 19. Melidones’s one-time use of the word “nigger” while yelling at Daniel, the court held, “although reprehensible, cannot, by itself, sustain a hostile work environment claim.” Id. at 20. The court concluded, “Considering the evidence favoring Daniel cumulatively, ‘the allegations against [T&M] involve episodes of name-calling, inappropriate behavior by a supervisor, and other perceived slights, which, however regrettable, do not constitute a hostile work environment.’” Id. (citation omitted).

The court noted that summary judgment “might be inappropriate if Melidones had physically threatened Daniel or humiliated him in front of his coworkers,” but observed that Daniel did not make such allegations. Id. Moreover, the court said, the evidence provided only limited support for a finding that Melidones’s conduct interfered with Daniel’s work performance. Id. at 21.

Finally, the court compared Daniel’s allegations to the facts of previous cases. The comparison, the court said, showed that Daniel was “mistreated – based in part on his race, perceived national origin, and perceived sexual orientation. . . . However, measured against the standards set by the case law, Daniel’s mistreatment does not rise to the level of ‘severe or pervasive’ harassment so as to create a ‘hostile or abusive’ work environment.” Id. at 25.

Summary of Argument

A reasonable jury could find that Daniel experienced a hostile work environment within the meaning of Title VII on the basis of his race, perceived national origin, and/or perceived sexual orientation. Having his supervisor tell him that he was a “fucking nigger” is, by itself, sufficient to defeat summary judgment. Combined with the other evidence in this case, Daniel has presented more than enough evidence to reach a jury.

The district court erred by minimizing the significance of the term “nigger.” The court also erred by downplaying the remainder of the evidence. The court dismissed some of Daniel’s allegations as facially neutral incidents without acknowledging that such incidents may be part of a discriminatory work environment if the same individual engages in multiple acts of harassment, some overtly discriminatory and some not. Likewise, the court failed to acknowledge that discrimination on the basis of one protected characteristic can amplify the effect of discrimination on the basis of another protected characteristic, rendering a work environment more hostile. Finally, the court failed to understand Daniel’s testimony about the frequency of Melidones’s harassment and did not recognize that even low-level harassment can be “pervasive” within the meaning of Title VII.

Argument

A reasonable jury could find that Daniel endured a hostile work environment within the meaning of Title VII because of his race, perceived national origin, and/or perceived sexual orientation.

Title VII prohibits discrimination in the “terms, conditions, or privileges of employment because of [an employee’s] race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). This language prohibits discriminatory harassment that is “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). “[T]he very fact that . . . discriminatory conduct [is] so severe or pervasive that it create[s] a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII’s broad rule of workplace equality.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). The “severe or pervasive” hostile environment test is disjunctive. Contrary to the district court’s analysis, R.106, Slip Op. at 19-20, “the required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.” Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991); see also Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (Title VII prohibits a single incident of “extremely serious” harassment); Richardson v. N.Y. State Dep’t of Correctional Serv., 180 F.3d 426, 437 (2d Cir. 1999) (same); Lauderdale v. Tex. Dep’t of Criminal Justice, 512 F.3d 157, 163 (5th Cir. 2007) (“Frequent incidents of harassment, though not severe, can reach the level of ‘pervasive,’ thereby altering the terms, conditions, or privileges of employment such that a hostile work environment exists.”).

Although the district court looked at “severe” incidents separately from “pervasive” incidents, R.106, Slip Op. at 20, courts must look at “all the circumstances” in assessing the existence of an actionable hostile work environment. Harris, 510 U.S. at 22; Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2012). Relevant circumstances “may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23. The district court considered it significant that “Daniel does not claim that Melidones’s behavior was threatening or humiliating” and that there was only “limited” evidence to suggest that the harassment interfered with his work performance. R.106, Slip Op. at 20-21. The absence of one or more of the Harris factors, however, does not prevent a discriminatory hostile work environment from violating Title VII. “[W]hile [all] relevant factor[s] may be taken into account, no single factor is required.” Harris, 510 U.S. at 23; see also Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 607 (2d Cir. 2006) (whether harassment interferes with work performance is merely “ʻone factor to be considered’”) (citation omitted).

Had the district court properly considered the evidence in this case, it could not have granted summary judgment to T&M. For the following reasons, a reasonable jury could find that Daniel endured a hostile work environment in violation of Title VII.

A. A supervisor’s statement “you fucking nigger” to a subordinate

is, by itself, sufficiently severe to constitute an actionable hostile work environment within the meaning of Title VII.

“Nigger” is “the racial epithet that is widely regarded as the most hateful and offensive in our culture.” Green v. Harvard Vanguard Med. Assocs., Inc., 944 N.E.2d 184, 187 (Mass. App. Ct. 2011). This Court already recognizes that a single utterance of the word may be enough to create a hostile work environment, although it has not yet decided a case on this basis. In dicta in Rivera and Richardson, two cases involving more than a single incident, this Court observed, “‘[P]erhaps 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.’” Rivera, 743 F.3d at 24 (citation omitted); Richardson, 180 F.3d at 439 (same); see also Albert-Roberts v. GGG Constr., LLC, 542 F. App’x 62, 64 (2d Cir. 2013) (“There may well exist circumstances where a single use of the word ‘nigger’ would rise to the level of a hostile work environment, but on the facts present here [where coworker, not supervisor, used the term to plaintiff’s husband, not to plaintiff], this is not such a case.”).

This case squarely raises the question of which circumstances, if any, are sufficient for the one-time use of the word “nigger” to create a hostile work environment. The EEOC has long said that a single use of the term can violate Title VII. EEOC Compl. Man., Race and Color Discrimination § 15-VII(A)(2), 2006 WL 4673430 (June 2006) (“Examples of the types of single incidents that can create a hostile work environment based on race include . . . an unambiguous racial epithet such as the ‘N-word’ . . . .”); Brooks v. Dalton, EEOC Doc. 05950484, 1996 WL 375598, at *4 (EEOC June 25, 1996) (citing with approval case describing the word “nigger” as “ʻdredging up the entire history of racial discrimination in this country’”) (citation omitted). In the EEOC’s view, a supervisor’s use of the term “nigger” to a black subordinate is the type of “extremely serious” incident that is sufficient, standing alone, to create a hostile work environment. See Faragher, 524 U.S. at 788.

Here, Daniel’s direct supervisor told him that he was a “fucking nigger.” It is impossible to imagine that Daniel’s work environment was not permanently poisoned by this outburst. To his knowledge, Daniel’s coworkers did not witness this demeaning episode, although Daniel cannot know who may have been in the room with Melidones during the phone call. The presumed absence of witnesses, however, is of no consequence. Melidones uttered the epithet directly to Daniel, thus increasing its impact. See Rivera, 743 F.3d at 24 (impact of racial slurs is increased when supervisor directs them at subordinate). He made it clear that, in his view, Daniel’s race rendered him less than human. See “Why Niggers are Not Human,” Vanguard News Network Forum, http://vnnforum.com/showthread.php?t=19818 (last visited Sept. 7, 2016); see also Nigger Jokes, niggermania.com/niggerjokes/ (last visited Sept. 9, 2016) (“These nigger jokes are for you. Just sit back and laugh at niggers!!”).

Had Daniel remained employed with T&M, Melidones would have continued to supervise him. With every interaction that they had, Daniel would have heard the echo of this most offensive racial epithet and would have been reminded that his supervisor viewed him as racially inferior. See R.65-1, Daniel Dep. at 114 (“[H]is voice is being replayed in my head every time I have to tell this story, every time.”); id. at 111 (“I will never – as long as I am alive and as long as my mind is intact, I will never forget that incident.”).

Working with Melidones after this incident would have been far worse than working with a racist coworker. See Ellis v. Houston, 742 F.3d 307, 322 (8th Cir. 2014) (“Participation by a supervisor can magnify the impact of harassment.”); Rodgers v. W.-S. Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (same). The Supreme Court has recognized that, unlike with coworker harassment, employees are not free to walk away when their supervisor is the harasser. Faragher, 524 U.S. at 803. Thus, “a supervisor’s ‘power and authority invests his or her harassing conduct with a particular threatening character.’” Pa. State Police v. Suders, 542 U.S. 129, 145 (2004) (citation omitted).

The Massachusetts Appeals Court has held that “ʻa supervisor who calls a black subordinate a “fucking nigger” has engaged in conduct so powerfully offensive’ that liability for racial discrimination . . . may be based ‘on a single instance. That term inflicts cruel injury by its very utterance. It is degrading, it is humiliating, and it is freighted with a long and shameful history of humiliation, the ugly effects of which continue to haunt us all. The words have no legitimate place in the working environment – indeed, they have no legitimate place – and there is no conceivable justification for their use by a workplace supervisor.’” Green, 944 N.E.2d at 190-91 (quoting Augis Corp. v. Mass. Comm’n Against Discrimination, 914 N.E. 2d 916, 924-25 (Mass. App. Ct. 2009)).

This Court’s sister circuits have indicated that they agree. In an en banc opinion, the Fourth Circuit recently held that a supervisor’s two-time use of the term “porch monkey” could be severe enough to create a hostile work environment because the term “is about as odious as the use of the word ‘nigger,’” which it described as “ʻpure anathema to African-Americans.’” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 280 (4th Cir. 2015) (en banc) (citation omitted). The Sixth Circuit has refused to “exclude the possibility that only one or two incidents of race-based harassment may be so severe as to constitute a hostile work environment.” Reed v. Procter & Gamble Mfg. Co., 556 F. App’x 421, 433 n.2 (6th Cir. 2014). The D.C. Circuit has explained that a single incident of a supervisor yelling at a plaintiff to “get out of my office[,] nigger” might, on its own, be enough to create a hostile work environment. Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013). And the Seventh Circuit has observed, “[I]n the case of racial and ethnic slurs, some words are so outrageous that a single incident might qualify for a hostile environment claim.” Ezell v. Potter, 400 F.3d 1041, 1048 (7th Cir. 2005).

As all of these courts have recognized, the word “nigger,” 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.’” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 (9th Cir. 2004) (quoting Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th Cir. 2001)).

One scholar explains the import of the word “nigger” 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).

Other scholars have likewise described the word “nigger” as uniquely humiliating. See David Pilgrim & Phillip Middleton, Nigger and Caricature, Ferris State Univ., Jim Crow Museum of Racist Memorabilia (Sept. 2001, rev. 2012), http://www.ferris.edu/jimcrow/caricature/ (“Nigger is the ultimate expression of white racism and white superiority . . . .”) (last visited Sept. 9, 2016); Okianer Christian Dark, Racial Insults: “Keep Thy Tongue From Evil,” 24 Suffolk L. Rev. 559, 566 (Fall 1990) (“ʻNigger’ 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. C.R. & C.L. 271, 286, 286 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.”).

In this case, Daniel’s immediate supervisor directed the racial epithet at him, calling him a “fucking nigger” and thereby making clear that, because of Daniel’s race, he considered Daniel subhuman. These facts prove what this Court has said in dicta – that a single utterance of this racial epithet may be sufficient to create a hostile work environment. Rivera, 743 F.3d at 24; Richardson, 180 F.3d at 439; Albert-Roberts, 542 F. App’x at 64. A reasonable jury could find that Melidones’s one-time use of the word violated Title VII, and Daniel should be given the opportunity to prove his claim.

Whether or not Melidones created a hostile work environment solely by telling Daniel that he was a “fucking nigger,” that episode when coupled with the other evidence in this case is sufficient to allow a reasonable jury to find that Daniel endured a hostile work environment in violation of Title VII. The district court erred in requiring Daniel to show that Melidones’s behavior was threatening or humiliating, or that it interfered with his work performance. R.106, Slip Op. at 20-21. “[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances . . . [and] no single factor is required.” Harris, 510 U.S. at 23. Here, looking at all of the evidence, a reasonable jury could conclude that the steady stream of abuse Daniel suffered on the basis of his race, perceived national origin, and perceived sexual orientation was “sufficiently severe or pervasive ‘to alter the conditions of [his] employment and create an abusive working environment.’” Meritor, 477 U.S. at 67.

With respect to his race, when Daniel was first hired, Melidones told him that he only got the job because there was no white candidate and that he thought Daniel was being paid too much. R.65-1, Daniel Dep. at 81-83, 103. Soon afterwards, Melidones likened him to a gorilla. R.65-1, Daniel Dep. at 90. As the Fourth Circuit has recognized, comparing a person to a monkey is “odious.” Boyer-Liberto, 786 F.3d at 280. “To suggest that a human being’s physical appearance is essentially a caricature of a jungle beast goes far beyond the merely unflattering; it is degrading and humiliating in the extreme.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 187 (4th Cir. 2001); see also EEOC Compl. Man., Race and Color Discrimination § 15-VII(A)(2), 2006 WL 4673430 (June 2006) (“racial comparison to an animal” is an extremely serious incident of harassment and its one-time occurrence can create a hostile work environment).

Melidones proceeded to harass Daniel based on his race two or three times a week, almost every week. From February 2011 through September 2011, Melidones told Daniel several times weekly, “You are not black.” R.65-1, Daniel Dep. at 89. He explained this comment by saying, “You are not black because you don’t wear your pants down your waist, you don’t swagger, you don’t ‘what up.’” Id. at 90. In the presence of coworkers who were black or Indian, Melidones asked Daniel, “What do you think, you are better than these people?” Id. But see R.106, Slip Op. at 18 (wrongly stating that Melidones harassed Daniel only “sporadically and relatively infrequently”).

Additionally, based on Daniel’s race, Melidones accused him of having stolen a tenant’s computer. He told Daniel, “I have a picture of a black male with a bald head.” Without ever showing Daniel the picture, he asked him, “Basically, is this you?” Id. at 106-07.

Melidones also made a point of Daniel’s race during the Presidential campaign of 2012. Implying that Daniel would vote for now-President Obama because of President Obama’s race, Melidones asked him, “Are you going to vote for your man, Obama?” When Daniel replied that he was a registered Republican, Melidones told him, “I guess you are all right after all.” Id. at 109-10.

Melidones’s racial harassment reached its peak after he told Daniel to speak with Bain Capital’s office manager about a planned employee termination. When Daniel contacted her by phone instead of in person, Melidones called him and screamed at him in a “belligerent, profanity-laced tirade.” Id. at 111-15. “Who told you to call?” Melidones asked. When Daniel tried to respond, Melidones told him, “Shut the fuck up, you fucking idiot. You fucking nigger.” Id. He then slammed the phone down in Daniel’s ear. Id.

In addition to harassing Daniel based on his race, Melidones harassed him based on his perceived national origin. Melidones insisted that Daniel came from England and “many times” told him to go back there. Id. at 108-09. Daniel found this offensive and showed Melidones his birth certificate, which proved that he had been born in St. Vincent and the Grenadines, but Melidones continued to tell Daniel to go back to England. Id. at 10, 89, 95-96, 108-09. “Every single time” that Melidones spoke to Daniel, he did so with an “imitated English accent.” Id. at 91. Daniel asked him to speak with his “normal tone of voice,” but Melidones did not. Id. at 95. Additionally, he sang Calypso. Id. at 132.

Finally, Melidones also harassed Daniel based on his perceived sexual orientation. Although this Court has held that Title VII’s prohibition against sex discrimination does not prohibit discrimination based on sexual orientation,[3] Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000), it acknowledges, as it must, that sex discrimination includes discrimination based on the failure to conform to gender stereotypes. Back v. Hastings on Hudson U. Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). Where, as here, a harasser speculates that his victim is gay based on the victim’s appearance and/or behavior, but does not know whether the speculation is true, the harassment is necessarily based on the victim’s deviation from gender stereotypes. Compare Dawson v. Bumble & Bumble, 398 F.3d 211, 217-21 (2d Cir. 2005) (lesbian’s gender stereotyping claim was actually claim of sexual orientation discrimination) with EEOC v. Boh Bros. Constr. Co., 731 F.3d 444, 457 (5th Cir. 2013) (en banc) (affirming jury’s finding that crew superintendent harassed plaintiff because of sex where superintendent thought that plaintiff “was not a manly-enough man”). The harassment is, accordingly, within the scope of Title VII.

Melidones and Daniel’s coworkers assumed that Daniel is gay based on Daniel’s appearance and behavior. See R.65-1, Daniel Dep. at 249-50 (coworkers openly speculated about Daniel’s sexual orientation); id. at 249 (coworkers “obsessed” with whether Daniel is gay because of “the way he walks, the way he talks”). “Many times” Melidones told Daniel to “man up, be a man.” Id. at 68, 133. He also called Daniel from the Broadway show Mary Poppins and told him, “I can see you as Mary Poppins. You will make a good Mary Poppins.” Id. at 234.

Melidones “repeatedly” went into the locker room to watch Daniel change clothes or nap. Id. at 105. Although the district court speculated that Melidones watched Daniel in the locker room to “ensur[e] that Daniel, who had issues with lateness, began his shift on time,” R.106, Slip Op. at 17, on summary judgment the court was required to make all reasonable inferences in favor of Daniel. Gilman v. Marsh & McLennan Cos., 826 F.3d 69, 73 (2d Cir. 2016). One reasonable inference is that Melidones watched Daniel because of his response to Daniel’s perceived sexual orientation. Consistent with this inference, one time, as he watched Daniel change, Melidones said, “I didn’t hire you to be beautiful. I want a supervisor, not a God.” Id. at 233-34.

More graphically, in June or July 2011, Melidones came up behind Daniel while he was standing at his work podium, brushed up against Daniel’s buttocks with his genitalia, and asked Daniel, “Are you gay?” Id. at 230. Daniel immediately moved away and Melidones saw that he was upset. Id. Nonetheless, Melidones subsequently came up behind him two or three times a week, leaned into him, and said “homo” into Daniel’s ear. Id. at 231-32. While standing behind Daniel, he also said to Daniel’s coworker Manny Padermo (a father and grandfather), “Manny the homo, Manny the homo.” Id. at 231-32, 242. Daniel suspected that Melidones was referring to him, not to Padermo, while he said these words. Id. at 232-33, 243-44.

A factfinder must consider the impact of all of Melidones’s harassing conduct, whether based on race, perceived national origin, or perceived sexual orientation, in deciding whether Daniel experienced severe or pervasive harassment in violation of Title VII. This Court has explained that even when a plaintiff “has not alleged sufficient facts to make out a hostile work environment claim based solely on race, his allegations of racial animosity can nevertheless be considered by a trier-of-fact when evaluating [his] religion-based claim.” Feingold v. New York, 366 F.3d 138, 151 (2d Cir. 2004). Harassment on the basis of one protected characteristic can amplify the effect of harassment based on another protected characteristic. Cruz v. Coach Stores, Inc., 202 F.3d 560, 572 (2d Cir. 2000), overruled in part on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).

Contrary to the district court’s analysis, a plaintiff may also rely upon facially neutral conduct to bolster a harassment claim when “‘the same individual’ engaged in ‘multiple acts of harassment, some overtly [based on a protected characteristic] and some not.’” See Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547-48 (2d Cir. 2010) (citation omitted). In those circumstances, a reasonable jury may infer that the harasser’s facially neutral conduct was infused with discrimination and was motivated by his animosity toward the victim based on protected characteristics.

Such is the case here. Melidones harassed Daniel expressly because of his race, perceived national origin, and perceived sexual orientation. He also harassed him in facially neutral ways, such as by calling him stupid and telling him he was an idiot. R.65-1, Daniel Dep. at 153. A reasonable jury could find that Melidones’s discriminatory animus spilled over into his facially neutral remarks, rendering all of his comments discriminatory. See Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002) (court may consider facially neutral incidents as part of hostile work environment if reasonable jury could conclude that they were based on sex); Howley v. Town of Stratford, 217 F.3d 141, 156 (2d Cir. 2000) (based on harasser’s previous, discriminatory statements, jury could conclude that subsequent, facially neutral comments were also based on gender).

Conclusion

Taken as a whole, the evidence in this case supports a finding of severe or pervasive harassment on the basis of race, perceived national origin, and/or perceived sexual orientation. A reasonable jury could find that Daniel endured a hostile work environment within the meaning of Title VII, and the district court erred by granting summary judgment.

For the foregoing reasons, the EEOC respectfully asks this Court to reverse the award of summary judgment.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

/s/ Gail S. Coleman

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, NE, Room 5SW24L

Washington, DC 20507

(202) 663-4055

gail.coleman@eeoc.gov

[1] The EEOC is sensitive to the uniquely offensive nature of the N-word and uses it advisedly in this brief. A central issue in this case is whether a supervisor’s one-time use of the N-word is sufficient to create a hostile work environment in violation of Title VII. The shocking nature of the unsanitized epithet is relevant to Daniel’s experience of his work environment and to the Court’s analysis. The EEOC therefore presents the word as Daniel heard it.

[2] The district court construed Daniel’s claim of harassment based on his perceived sexual orientation as a claim of sexual harassment. R.106, Slip Op. at 16 n.1.

[3] The EEOC disagrees with this holding and interprets Title VII’s prohibition against sex discrimination to incorporate a prohibition against sexual orientation discrimination. Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (EEOC July 15, 2015). Currently pending before this Court are two requests to change its rule, which is based on dated precedents from other circuits, in light of the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). See Magnusson v. County of Suffolk, No. 16-1876 (2d Cir.) (pending) (EEOC amicus brief filed Sept. 29, 2016); Christiansen v. Omnicom Grp., Inc., No. 16-748 (2d Cir.) (pending) (EEOC amicus brief filed June 28, 2016).