By Oliver Enquist
In Ellis v. Houston, the Eighth Circuit Court of Appeals ruled, in part, in favor of five African-American Correctional Officers who brought claims against five of their Supervisors for race-based harassment and retaliation.
The Plaintiffs experienced demoralizing race-based taunts and jokes while employed at the Nebraska State Penitentiary. Shockingly, not only did the Supervisors permit these acts of racial discrimination, but they engaged in harassing the Officers as well. After enduring such harassment for months, the African-American Officers reported it to authorities in the Nebraska prison system. Thereafter, the Supervisors retaliated against them by increasing their workloads and assigning undesirable jobs. The Plaintiffs eventually filed suit. At trial, the Court ruled in favor of the Employer after finding that the officers’ work environment was not objectively severe or pervasive enough to alter the terms of employment.
On appeal, however, the Court found that one supervisor, Sergeant Miles, did make racially charged statements. The court found Miles engaged in “purposeful discrimination” by his own comments, as well as by his failure to act to correct the actions of his subordinates.
Factors which can demonstrate the magnitude of any harassment include “the frequency and severity of the discriminatory conduct, whether it is physically threatening or humiliating or only an offensive utterance, whether it unreasonably interferes with the employee’s work performance, physical proximity to the harasser, and the presence or absence of other people.”
At the time of these events in the Nebraska prison, the law was clearly established that race-based harassment would violate the African-American Officers’ constitutional rights. As for the other supervisors, there was insufficient evidence of harassment to reverse the claims against them.
The black officers presented evidence here that the Nebraska penitentiary’s own administrative regulation 112.07 recognized that inflammatory racial comments and jokes violate employee rights. Any reasonable supervisor would have recognized that racial slurs and remarks like those used here would illegally affect the working environment.
The Court also upheld a retaliation claim brought by one officer against two of his lieutenants, though it dismissed the retaliation claims of the other officers.
Editor’s Note: As to the Officers’ harassment and retaliation claims, the Appeals Court set forth a number of important, practical points. First, focusing on context and the work environment as a whole, instead of isolated and discrete acts, are critical in determining whether a “pattern of discriminatory conduct” exists in the workplace. Second, unlawful harassment can exist even if an officer is not directly subject to the harassment, but learns of it later from other officers. Third, participation by a supervisor can magnify the harassment, because it demonstrates an unspoken endorsement of racist remarks by subordinates, and indicates to other officers that the racist jokes and remarks are acceptable and will be permitted without consequences. Finally, retaliation can be shown in various ways, including: a reassignment of job duties; a pattern of false or retaliatory reports; unfair discipline; and job transfers to other facilities.
