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 Excerpted From: Lisa Holder, Eva Paterson, Mona Tawatao, Christina Alvernaz, Kelly M. Dermody , Daniel M. Hutchinson, Evan J. Ballan, Michelle A. Lamy, Jessica A. Moldovan, Nigar A. Shaikh, Lieff Cabraser Brief of Amici Curiae Social Science Experts, Race Equity Scholars, Law Professors, and Civil Rights Entities in Support of Petitioner Robert Collier, Petitioner, V. Dallas County Hospital District, Doing Business as Parkland Health & System, Respondent. No. 20-1004. Supreme Court of the United States. (March 18, 2021). (Footnotes) (Full Document)


The N-word Creates a Hostile Work Environment Because it Alters the Terms and Conditions of the Workplace


workplacediscriminationIn recognition of the uniquely important role of the workplace in the health and dignity of workers, Title VII prohibits employers from creating or tolerating an environment where harassment is “sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris, 510 U.S. at 21 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). To determine whether abusive conduct is “severe or pervasive,” courts examine “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. This Court has cautioned that frequency is not the determinative factor; rather, even an “isolated incident” can be sufficiently “severe” within the meaning of Title VII if it is “extremely serious.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Also, the “conditions” of employment extend beyond its economic terms, such that “employees' psychological as well as economic fringes are statutorily entitled to protection from employer abuse.” Firefighters Institute for Racial Equity v. City of St. Louis, 549 F.2d 506, 514-15 (8th Cir. 1977) (quoting Rogers v. E.E.O.C., 454 F.2d 234, 238 (5th Cir. 1971)).

There is broad agreement that exposure to racial epithets, where deemed “severe and pervasive,” alters the terms and conditions of employment and is actionable discrimination under Title VII. See, e.g., Rodgers v. W.S. Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (quoting Meritor Sav. Bank, 477 U.S. at 67); Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) (same, quoting Rodgers, 12 F.3d at 675); Richardson v. N.Y. State Dept of Corr. Serv., 180 F.3d 426, 439 (2d Cir. 1999), abrogated on other grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (same, quoting Rodgers, 12 F.3d at 675)). And the consensus is that when the N-word is wielded in the workplace, its toxicity is magnified. In Rodgers, the Seventh Circuit opined that “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.” 12 F.3d at 675. Likewise, in McGinest, the Ninth Circuit concluded that use of the N-word in reference to a Black employee and the prevalence of racially charged graffiti at the workplace were “significant exacerbating factors in evaluating the severity of the racial hostility.” 360 F.3d at 1116.

In the absence of definitive guidance from this Court, however, lower courts have split on whether a single utterance of (or limited exposure to) the N-word at work can be severe enough to constitute a hostile work environment. The Third, Fourth, and D.C. Circuits agree that it can. See Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017) (holding that “one such instance” of the N-word “can suffice to state a claim”); Boyer-Lberto v. Fontainebleau Corp., 786 F.3d 264, 280 (4th Cir. 2015) (en banc) (holding that “a reasonable jury could find that ... two uses of the ‘porch monkey’ epithet,” which the court deemed as “odious” as the word “Nigger,” “whether viewed as a single incident or as a pair of discrete instances of harassment - were severe enough to engender a hostile work environment”); Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 580 (D.C. Cir. 2013) (Kavanaugh, J., concurring) (“[B]eing called the [N]-word by a supervisor ... suffices by itself to establish a racially hostile work environment.”). In contrast, the Sixth, Seventh, Eighth, and Tenth Circuits - like the Fifth Circuit here - hold that an “isolated” use of the N-word is not serious enough to constitute actionable discrimination under Title VII. See Pet. at 12-16 (collecting cases).

The Third, Fourth, and D.C. Circuits' approach accords with the social science on the uniquely pernicious effects of the N-word at work, and amici respectfully urge this Court to adopt this approach.


A. Racist Acts and Invectives Cause Harm to Physical and Mental Health.

The physical, mental, and psychological harms linked to overt racism and other forms of racial bias are well established. Robert T. Carter et al., A Meta-Analytic Review of Racial Discrimination: Relationships to Health and Culture, 11 Race & Soc. Probs. 15, 23 (2019) (metaanalyses of 242 studies found racial discrimination was related to mental health effects of obsessive-compulsive behavior, stress, and hostility and anger and physical effects of high blood pressure and negative health).

Research analyzing a broad sample of studies on racism's physiological impact found that “direct encounters with discriminatory events contribute to negative health outcomes.” Jules P. Harrell et al., Physiological Responses to Racism and Discrimination: An Assessment of the Evidence, 93 Am. J. Pub. Health 243, 243 (2003). One such study examined the relationship between cardiovascular reactivity and interpersonal mistreatment and discrimination in middle-aged Black and white American women. Max Guyll et al., Discrimination and Unfair Treatment: Relationship to Cardiovascular Reactivity Among African American and European American Women, 20 Health Psych. 315 (2001), 20.5.315. The Black women, who attributed mistreatment to racial discrimination, exhibited greater average diastolic blood pressure reactivity. Id. These findings support the hypothesis that discrimination is a chronic stressor that can negatively impact the cardiovascular health of African Americans.

In another study, Black college students viewed three scenarios: racist situations involving Black people; anger-provoking, nonracist situations; and neutral situations. Cheryl A. Armstead et al., Relationship of Racial Stressors to Blood Pressure Responses and Anger Expression in Black College Students, 8 Health Psych. 541, 541 (1989), Analysis done after each viewing revealed significantly increased blood pressure in response to racist stimuli, but not to anger-provoking or neutral stimuli. Id. at 552. The study concluded that racism was associated with increased blood pressure in Black people and posited, “[t]here may be a heightened sensitization and vigilance for racism,” because “[r]acism is an aversive stimulus that threatens ‘selfhood,’ whereas mere anger does not have such deleterious effects.” Id. at 553. High blood pressure or hypertension correlates with cardiovascular disease for which the mortality rate of African Americans is twice that of their Caucasian peers. Mary Dunklin, High Blood Pressure Increasingly Deadly for Black People, Am. Heart Ass'n (July 13, 2020), https://www.

Abusive and discriminatory speech in the workplace also harms mental health. Kerri Lynn Stone, Decoding Civility, 28 Berkeley J. Gender L. & Just. 185, 213-14 (2013). One study of hospital employees found that Black employees were more likely to report frequent discrimination correlated with depressive symptoms “above and well beyond that of simple job strain or general social stress.” Id. (citing Wizdom Powell Hammond et al., Workplace Discrimination and Depressive Symptoms: A Study of Multi-Ethnic Hospital Employees, 2 Race & Soc. Probs. 19 (2010)); see also Robert T. Carter, Racism and Psychological and Emotional Injury: Recognizing and Assessing Race-Based Traumatic Stress, 35 Counseling Psych. 85 (2007) (noting the psychological and emotional harm from language such as “Nigger” and “Boy”).

Further, the negative mental health impacts of racist incidents can compound racism's physiological harm. A study based on in-depth interviews of African Americans concluded that incidents of race discrimination affect mental health “so profoundly” because “they are experiences of exclusion that trigger feelings of a ‘defilement of self... includ[ing] feelings of being over-scrutinized, overlooked, underappreciated, misunderstood, and disrespected.” David R. Williams, Stress and the Mental Health of Populations of Color: Advancing Our Understanding of Race-related Stressors, 59 J. Health & Soc. Behav. 466, 469 (2018), This often triggers a state of heightened vigilance in the affected employee, further compounding the stress response. “Heightened vigilance” refers to a specific type of stress, namely “living in a state of psychological arousal in order to monitor, respond to, and attempt to protect oneself from threats linked to potential experiences of discrimination and other dangers in one's immediate environment.” Id. at 470. Research links this race-related heightened vigilance to hypertension, negative cardiovascular function, sleep difficulties, obesity, and depressive symptoms. Id. The cascade of harms is so severe that the American Psychological Association (APA) has concluded: “Quite literally, racism can kill.” Naomi Torres-Mackie, How Racist Messages Harm Physical and Mental Health, Psych. Today (Aug. 9, 2019),

The word “Nigger” at work is particularly deleterious and triggering of hyper-vigilance syndrome. Historian Elizabeth Strouder-Prior describes her encounter with the N-word at work (in the classroom) as annihilating and immobilizing. Why It's So Hard to Talk About the N-Word, TEDx (Dec. 2019), https://www.ted. he_n_word. Strouder-Prior's immobilization is a bio-physical response on the spectrum of somatic responses to the N-word consistent with hyper-vigilance. “[W]hen a white person uses the term ‘Nigger,’ regardless of his conscious intentions, he is making a fundamental statement about his place in the world and... the place of African Americans... akin to ... saying explicitly: I reject the concept of equality, I reject your humanity, I am more powerful than you, and because of that power, I can say anything I want, and you have no recourse.”' Leora F. Eisenstadt, The N-Word at Work: Contextualizing Language in the Workplace, 33 Berkeley J. Emp. & Lab. L. 299, 319 (2012). Social science demonstrates that the word “typically renders the targeted listeners speechless and demoralized, and creates in them a feeling of helplessness that is met with anger, fear, or sadness.” Id. at 319-20. The hyper-vigilance response leads to a constellation of dangerous health conditions for African American employees. See supra Section I.A.

The N-word is also uniquely harmful because it undermines dignity and self-esteem, moral characteristics that modern psychology embraces as fundamental human needs. When used in the workplace, the N-word can trigger a self-demotion dynamic that manifests in the form of stereotype threat - a phenomenon that occurs when people placed in situations where negative stereotypes about groups to which they belong are at risk of being confirmed and experience apprehension, severe anxiety, poor recall, and poor performance. Chad E. Forbes & Jordan B. Leitner, Stereotype Threat Engenders Neutral Attentional Bias Toward Negative Feedback to Undermine Performance, 102 Biological Psych. 98 (2014), https://www. 4001525. Studies show that the N-word at work triggers stereotype threat that impairs Black workers' performance in the workplace and other evaluative settings. Williams, supra, 470-71.

The deleterious physical and psychological impacts on Plaintiff-Appellant Brian Collier and other Black people targeted by the word “Nigger” at work track these research findings:

• Mr. Collier testified that the word “Nigger” carved into the elevator he took every day at work and other “very upsetting” incidents never “went away or out of [his] mind,” ROA 241, 251, 256, indicating his daily anxiety and hypervigilance.

Tyshanna Nuness testified that she “couldn't go to sleep” after being called a “Nigglet,” “like a Pig Nigger,” by her co-worker. Nuness v. Simon & Schuster, Inc., 325 F. Supp. 3d 535, 541 (D.N.J. 2018).

• Contonius Gill testified of being called “Coon” and hearing “Nigger” and other racial slurs at his job as a tanker/truck driver: “This treatment at work left me depressed. I felt isolated, demeaned and dehumanized. I began having difficulty sleeping and I was filled with anxiety.” Meeting of June 20, 2016 Rebooting Workplace Harassment Prevention, EEOC v. A.C. Widenhouse, Inc. (2016) (written testimony of Contonius Gill, Charging Party), meetings/meeting-june-20-2016-rebooting-workplace-harassment-prevention/gill.

• Fred Gates, a school building engineer, took one month of sick leave for psychological distress, including violence-provoked thoughts about his supervisor and other higher-ups, after his supervisor racially harassed him and called him “Nigger” twice. Gates v. Bd. of Educ. of the City of Chicago, 916 F.3d 631, 634 (7th Cir. 2019).

. Brenda Smelter, a homecare worker, testified that enduring racist remarks culminating in being assailed with “Dumb Black Nigger” by her co-worker was “stressful and hurtful.” Smelter v. S. Home Care Servs. Inc., 904 F.3d 1276, 1285 (11th Cir. 2008).

. Edward Blackwell was one among a group of Black construction workers who testified that they felt “fear,” “stress,” “hurt,” “saddened,” upset,” and “humiliation” when co-workers used the slur “Nigger,” hung nooses and displayed the confederate flag on the worksite. Equal Emp. Opportunity Comm'n v. L.A. Pipeline Constr. Inc., No. 2:08-cv-840, 2010 WL 2301292, at(S.D. Ohio June 8, 2010).

These accounts accord with the substantial social science showing that the word “Nigger,” when inflicted in the workplace, has great power to cause physical, moral, and psychological injury.


B. The N-word at Work Is Qualitatively Different than Its Use Elsewhere Because of the Unique Importance of the Workplace.

Because many Americans spend as much as one-third-or more - of their adult lives in the workplace and rely on their jobs for financial security and economic mobility, their workplace experiences can have an especially profound impact on their lives. Heather McLaughlin et al, The Economic and Career Effects of Sexual Harassment on Working Women, 31 Gender Society 333 (2017). Research shows that the N-word's toxicity is amplified in the workplace due to the sheer amount of time employees spend there each day. See, e.g., James W. Collins et al., Very Low Birthweight in African American Infants: The Role of Maternal Exposure to Interpersonal Racial Discrimination, 94 Am. J. Pub. Health 2132, 2135 (2004) (studying the mental and physical health effects of racism and finding that “lifetime exposure to racial discrimination” was “strongest” in the “place of employment”).


C. Severity of the N-Word at Work Is Analogous to One Instance of Sexual Assault.

In Title VII harassment cases, severity matters. Courts routinely contemplate a spectrum of indignity to assess severity. In workplace sexual harassment cases, courts have differentiated between conduct that is less severe - of which a single instance generally cannot give rise to liability - and more severe acts that, even in isolation, can alter the terms of the workplace and create a triable Title VII issue. See, e.g., Redd v. N.Y. Div. of Parole, 678 F.3d 166, 175-76 (2d Cir. 2012) (recognizing that while isolated incidents “usually will not suffice to establish a hostile work environment ... even a single episode of harassment can establish a hostile work environment if the incident is sufficiently ‘severe’ (collecting cases)). Courts routinely find that a single instance of sexual assault constitutes a “severe” act while a single touch to the shoulder or hair may not. See, e.g., Perry v. Slensby, 815 Fed. App'x 608, 610-11 (2d Cir. 2020) (single instance of shoulder touching and sexually inappropriate remarks not sufficiently severe); Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001) (explaining that a single instance can suffice when it is “sufficiently egregious” and finding episode of sexual assault sufficient).

Similarly, in the context of racial harassment, courts have recognized a spectrum of severity pegged to the offensiveness of the racial slur that is informed by the slur's historical weight. Like a single physical assault, a single encounter with the word “Nigger” at work may be “severe,” while other slurs that do not convey the same historical burdens and weight of meaning may not be. See, e.g., Ayissi-Etoh, 712 F.3d at 580 (Kavanaugh, J., concurring) (analogizing a single use of the N-word to “a single physical act - such as a physical assault - [which] can create a hostile work environment”). Simply put: the N-word in the workplace bears no resemblance to an “incidental” comment or contact that would be insufficient to establish liability in a sex harassment case. It is of a kind with an assault that singularly and immediately, alters the terms of the workplace.


D. The N-Word at Work Is Never a “Mere Utterance” Because It Can Psychologically Eviscerate Black Workers.

The N-word cannot be dismissed as a workplace “microagression” or “mere utterance,” divorced from its violent racial history of rape, torture, and lynching. Nor can the N-word be downplayed as a “stray remark,” because it wields enough power to cause a domino effect of psychological harm to the target's mental and physical health. The N-word at work transcends microaggression or mere utterance because it lands with violence on the body, mind, and soul and annihilates the wellbeing of the victim.

Linguistic scientists have even concluded that the N-word at work has the power to impose the mental condition of being enslaved upon Black workers. The N-word strips the target of status, control, authority, power, and agency to a degree that the target does not simply work for or with others but, instead, is subordinate to non-Black coworkers. Alexander Brown, African American Enslavement, Speech Act Theory, and the Law, 23 J. African Am. Studies 162 (2019).


E. The N-Word Pervades the Workplace with the Disease of Racism.

A singular use of the N-word at work is pervasive; like a contagion, it embeds and replicates the pathogenic racial subjugation-domination dynamic in the workplace culture. See Rebecca Gibian, Why Words Matter: The Neuroscience of Hate Speech, Inside Hook (Nov. 1, 2018), https://www.insidehook. (repeated exposure to hate speech can increase prejudice and desensitize individuals to verbal aggression).

Aside from the acute psychic and physical harm the N-word can have on its target, its collateral consequences are ongoing and pervasive: Racially discriminatory conduct, particularly when it goes unabated, can poison the work environment, validate and encourage additional hateful conduct, and create a chain reaction effect throughout the workplace. Racial slurs, particularly in an office environment, are a means of enforcing and maintaining social hierarchy. “[A] key antecedent for those who use racial slurs is the desire for their dominant social group ... to retain a dominant social position relative to members of subordinate groups.” Ashleigh Shelby Rosette et al., Why Do Racial Slurs Remain Prevalent in the Workplace? Integrating Theory on Intergroup Behavior, 24 Org. Sci. 1402, 1403 (2013). “Racial slurs are used to reinforce divides between racial groups.” Id. at 1405. Indeed, members of the socially dominant group tend to remain silent when they observe the use of racial slurs by other members of the same group against a target in a subordinate group. Id.

Moreover, when accepted in the workplace as shoptalk or “mere utterance,” the N-word desensitizes bystanders, increasing the racial empathy gap that underwrites myriad terrible social outcomes for Black people. Americans are socialized to feel less empathy for Black people due to conditioning by hegemonic stereotypes. Jason Silverstein, I Don't Feel Your Pain: A failure of empathy perpetuates racial disparities, Slate (June 27, 2013), racial-empathy-gap-people-dont-perceive-pain-in-other-races.html. Based on experimentation, neuroscientists conclude that exposure to hate speech increases prejudice through desensitization, and that dehumanizing the target may reduce empathy. Id.

The use of the N-word in the workplace thus has the institutional effect of replicating race-based social hierarchies, and at the interpersonal level, it may empower office colleagues to engage in similar (or even escalated) harassing conduct. Ultimately, a single, isolated incident can be infectious, increasing the likelihood of subsequent racial slurs and other forms of discrimination. The Seventh Circuit in Daniels v. Essex Group, Inc., 937 F.2d 1264 (7th Cir. 1991), described this very phenomenon. There, the unaddressed “racial taunts” (“Nigger jokes”) against a Black employee by coworkers escalated over time to violent threats and a facsimile lynching of a black dummy marking “the outbreak of a more injurious strain of the virus of racism that had already infected the workplace.” Id. at 1266, 1274-75.

African Americans are vulnerable to unique forms of workplace hostility and systemic industrial inequality. For example, Black women are more likely than white women to suffer workplace sexual harassment. Black Women Disproportionately Experience Workplace Sexual Harassment, New NWLC Report Reveals, Nat'l Women's Law Ctr. (Aug. 2, 2018), Further, they are likely to be treated unfairly in promotions and training and discriminated against in advancement opportunities. Andie Kramer, Recognizing Workplace Challenges Faced by Black Women Leaders, Forbes (Jan. 7, 2020), 2020/01/07/recognizing-workplace-challenges-faced-by-black-women-leaders/.

Recognizing that African American workers suffer unique, outsized racialized harms is consistent with Title VII's recognition of the importance of subjective experience in assessing harassment violations.


F. The Reasonableness of an Accuser's Perception of the N-Word Cannot Be Rejected as a Matter of Law.

Reasonableness in the context of Title VII N-word-based harassment must be assessed at trial because the weight and severity of the victim's encounter with the word is a complex, situational, fact-intensive experience appropriate for a fact-finder analysis, guided by experts. Melissa L. Breger, Making the Invisible Visible: Exploring Implicit Bias, Judicial Diversity, and the Bench Trial, 53 U. Rich. L. Rev. 1039 (2019). Nuanced matters of how racism affects individual plaintiffs, including whether their work environment was both subjectively and objectively hostile, may often be issues better decided by juries than by judges. The word “Nigger” carries the weight of a history inextricably bound with violence, and its weaponization in the workplace carries a spectrum of traumatic responses for which the quantum of harm necessarily requires an assessment by a fact-finder.

Moreover, a collective decision-making body is more likely to overcome racialized blind spots that inhibit a nuanced appreciation for the unique pathology of the N-word. Understandably, the full impact and power of the word may be inaccessible to non-Black audiences; there is no analogy that accurately captures the hatred baked into its etymology. But to some degree, non-Black people intuitively “get it”: A 2019 Pew Research Institute study showed that seventy-two percent of white respondents believe that white people should be prohibited from uttering the N-word. Anna Brown, Key Findings on Americans' Views of Race in 2019, Pew Rsch. Ctr. (Apr. 9, 2019). So while these blind spots are unavoidable in a racially complex society, given that harassment is a subjective standard, a jury is best equipped to adjudicate the impact of the word on an employee.


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