Criticisms of Obamas (Including Racist Ones), Plus Other Speech, Didn't Qualify as Race-Based Workplace Harassment

So holds an Eleventh Circuit panel; Judge Andrew Brasher's concurring opinion that notes the potential First Amendment problems with imposing liability for such speech.

From Yelling v. St. Vincent's Health System, decided Thursday by the Eleventh Circuit, in an opinion by Judges Elizabeth Branch and Andrew Brasher and District Judge Allen Winsor (N.D. Fla.):

In March of [2015], President Obama visited Lawson State Community College—a predominantly black school Yelling [a nurse at St. Vincent's] had attended. While nurses were chatting one day at the nurse station, charge nurse Jimmy Wilhite remarked, "What is he doing coming here? Is he handing out food stamps?"

After that, as Yelling explains, the CDU "got really kind of heated with … racially disparaging comments." Yelling overheard white pool nurse Sandy Sheffield say, "Michelle Obama looks like a monkey" and that the "President is a piece of shit." White staffer Tiffany Hardy made similar remarks. So too did white weekday nurse Linda Powell, who said President Obama was "stupid," was the "worst president ever," and "needs to go back to Africa."

Yelling also heard these three coworkers refer to black patients as "boy" or "girl," "crack heads," "welfare queens," or "ghetto fabulous." And three other white coworkers … talked at the nurse station about their "redneck status," owning guns, and being "confederate flag flyers."

Yelling does not remember having any racial insult or slur directed at her personally. Still, Yelling reported the comments as offensive to the house supervisor on June 14, 2015. She also complained that Dubose maintained a "quota" of only staffing one black nurse per shift. St. Vincent's did not investigate Yelling's complaints or discipline any CDU staff for racist comments or staffing practices.

Yelling was later suspended and eventually fired, based on other allegations; she sued alleging retaliation and discrimination (read the opinion for more on that) and racial harassment:

To succeed on a racially hostile work environment claim under Title VII or § 1981, Yelling must prove: (1) she belongs to a protected class, (2) she experienced unwelcome harassment, (3) the harassment was based on her race, (4) the harassment was sufficiently severe or pervasive to alter the terms of her employment, and (5) employer responsibility under a theory of vicarious or direct liability.

Yelling has certainly provided evidence from which a jury could find she satisfied the first two elements. (St. Vincent's does not contend otherwise.) But Yelling has not provided sufficient evidence from which a jury could conclude the CDU was "permeated with 'discriminatory intimidation, ridicule, and insult, … sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.'"

Showing that harassment is sufficiently severe or pervasive requires showing both a subjective and objective component. Specifically, "[t]he employee must 'subjectively perceive' the harassment as sufficiently severe and pervasive … and this subjective perception must be objectively reasonable." Yelling has met her burden as to the subjective showing; she presented evidence clearly showing she subjectively perceived her coworkers' conduct as severe or pervasive. But she falls short as to the objective component.

"[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering 'all the circumstances.'" The Supreme Court, this court, and other Circuits have identified a nonexhaustive list of factors "to delineate a minimum level of severity or pervasiveness necessary for harassing conduct." Those factors are (1) the conduct's frequency, (2) its severity, (3) whether it was physically threatening or humiliating, rather than "mere offensive utterance[s]," and (4) whether it unreasonably interfered with the employee's job performance….

We conclude that Yelling has not presented evidence that would allow a reasonable jury to find in her favor…. Yelling has not cited evidence that her coworkers' conduct was so extreme as to make up for the infrequency.

We begin with the comments about the former President and First Lady. We cannot say that all of these comments were race-based—as opposed to political or personal disagreement. For example, comments that the President was "stupid," the "worst," or a "piece of shit" are not inherently racial. But even if we considered these comments race-based, and even drawing all reasonable inferences in Yelling's favor, we conclude no reasonable jury could conclude these comments evince extreme harassment.

This is true even when considering these comments together with other comments—several of which plainly were racist. Those comments were only isolated epithets rather than extreme harassment. The mere fact that a supervisor (Wilhite) uttered at least one does not automatically transform the conduct (still inexcusable) from boorish or crude to extreme. And Yelling does not cite any evidence that her coworkers aimed these or any comments at her personally. To be sure, Yelling need not be the intended target of harassment to succeed. But overhearing offensive comments is less severe or humiliating than being the intended target of direct harassment….

Yelling also points to the Larimore, Calvert, and Laroe comments about being "confederate flag flyers" or "redneck" gun owners, which the district court did not view as race-based. She argues at length that we must view these statements as racial harassment because of the context in which they were made. But the problem is that Yelling does not cite evidence adequately illuminating the context she says we must consider. She instead relies heavily on generalizations about changing "societal norms"—such as recent civil rights protests and confederate monument removals—that shed no light on what she experienced at St. Vincent's.

The evidence that Yelling does cite to that end is that she was regularly the only black nurse on her shift and that coworkers other than Larimore, Calvert, and Laroe made racist statements about the Obamas and patients. But that does not speak to the context of the conversations in which the statements were uttered. Nothing cited suggests, for example, that a coworker called herself a "confederate flag flyer" in conjunction with a racial slur or in the same discussion as one.

We cannot conclude that the comments about the confederate flag or being gun-carrying rednecks were racial harassment since Yelling only offers them in a vacuum. But even if we agreed with Yelling that they were race-based harassment, the comments still would not—alone or with everything else Yelling offers—be sufficient to show a hostile work environment.

There is no question that Yelling overheard race-based comments that do not belong in any workplace. But it is a "bedrock principle" that not all subjectively offensive language in the workplace violates Title VII. Title VII only prohibits harassment that is "so objectively offensive as to alter the 'conditions' of the victim's employment." On this summary judgment record, no reasonable jury could conclude Yelling experienced that….

Judge Andrew Brasher joined the panel opinion, but added:

I write separately to discuss the First Amendment implications of Ms. Yelling's request that we hold her employer liable under Title VII for failing to censor her co-workers' speech. To be clear, a private hospital can (and probably should) discourage its nurses from disparaging politicians and discussing divisive social issues in the hallway. But this case is ultimately about whether Title VII requires employers to adopt that kind of policy.

As many judges have noted, a Title VII hostile work environment claim is "unusual." Title VII bars discriminatory treatment in the terms, conditions, or privileges of employment. But a harassment claim isn't based on "inequality in hiring, firing, promotions, or duties;" instead, it holds an employer liable because of "abusive behavior by [a plaintiff's] coworkers in the workplace." Because an employer's liability for harassment sometimes turns on an employee's speech—what they said, how often they said it, and what they meant by it—avoiding liability for harassment requires an employer to prohibit certain kinds of speech in its workplace.

Although a private employer can adopt a speech code if it wants, the government usually cannot force people to speak in a particular way. For this reason, Title VII harassment law has always had an uneasy coexistence with the First Amendment. The government can penalize speech when that speech is merely incidental to tortious conduct. And nonexpressive conduct is often the root of a workplace harassment claim. But "[w]here pure expression is involved, Title VII steers into the territory of the First Amendment." DeAngelis v. El Paso Mun. Police Officers Ass'n (5th Cir. 1995). After all, when a plaintiff brings a Title VII "harassment claim[ ] founded solely on verbal insults" or other speech, she is necessarily asking a court to impose "content-based, viewpoint-discriminatory restrictions on speech,", and these kinds of restrictions are subject to strict judicial scrutiny.

To be clear, not every application of harassment law raises free speech concerns. As I've already noted, the government can regulate non-expressive conduct, even if doing so has an incidental effect on speech. The First Amendment also "permit[s] restrictions upon the content of speech in a few limited areas." Most relevant to workplace harassment, the government may ban: (1) obscenity, (2) "true threats" of violence, and (3) "fighting words"—"those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." …

The EEOC—which filed a thoughtful amicus brief in support of Yelling's position—says we should disregard any free-speech implications [in this case]. Its position at oral argument, which is contrary to decades of precedent, was that the First Amendment has no role to play in tort litigation between private parties. That's the wrong answer. A court cannot enforce a law in a dispute between private parties if doing so requires it to "impose invalid restrictions on [a person's] constitutional freedoms of speech and press." New York Times Co. v. Sullivan (1964); e.g., Snyder v. Phelps (2011) (noting "[t]he Free Speech Clause of the First Amendment … can serve as a defense in state tort suits"); Hustler Mag., Inc. v. Falwell (1988) (same).

For my part, I don't think we can ignore the tension between the First Amendment and Title VII harassment law. Instead, I think the objective prong of our hostile-work-environment standard must be applied consistent with First Amendment principles. That means that the closer objectionable workplace speech is to conduct or to traditionally unprotected areas of speech, the more leeway a court should have to find an objectively hostile work environment. But the closer objectionable speech comes to the heart of the First Amendment, the more reluctant a court should be to impose tort liability because of it….

I would hold that speech on public matters is inherently less likely to create a hostile work environment than speech on private matters. "[W]here matters of purely private significance are at issue, First Amendment protections are often less rigorous." But we give the highest degree of protection to speech on matters of public concern—that is, speech that can "be fairly considered as relating to any matter of political, social, or other concern to the community." For this reason, "even those commentators who conclude the First Amendment generally permits application of harassment laws to workplace speech recognize exceptions" for "debate on issues of public concern." Avis Rent A Car Sys., Inc. v. Aguilar (2000) (Thomas, J., dissenting from denial of certiorari) (citing Richard H. Fallon, Jr., Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn't Bark (1994)). See generally Eugene Volokh, Freedom of Speech and Workplace Harassment (1992).

In any event, these principles are one reason I agree with the Court that Ms. Yelling's hostile work environment claim fails as a matter of law. As Justice Sotomayor recently reminded us, "First Amendment vigilance is especially important when speech is disturbing, frightening, or painful, because the undesirability of such speech will place a heavy thumb in favor of silencing it." Counterman v. Colorado (2023) (Sotomayor, J., concurring). I think we should apply the objective element of workplace harassment law consistent with that idea.

I have more on the free speech vs. workplace harassment question here; for more appellate opinions noting this issue, see the DeAngelis (5th Cir.) (cited above) and Rodriguez v. Maricopa County Comm. Coll. Dist. (9th Cir. 2010).

Tammy Lynn Baker and Shannon L. Miller (Jackson Lewis, PC) represent St. Vincent's.