CHARLOTTE, N.C. — How powerful is the N-word?
So powerful that multiple courts around the country have ruled that a single utterance by a supervisor is enough to establish a racially hostile work environment.
“The N-word has a special place,” says UNC law professor Jeffrey Hirsch. “The courts are far less likely to tolerate it. It holds much more sway than any other word.”
Now, a Charlotte-area lawsuit pinballing through the federal courts poses a provocative question: Does the English language’s most repugnant racial slur carry the same legal weight when it is spoken by a child?
Tonya Chapman says it does. The former employee of an assisted living center in Rutherford County, west of Charlotte, claims she was targeted with the epithet three times by the 6-year-old grandson of the facility’s owners.
What’s more, the child’s father was Chapman’s immediate boss at Oakland Living Center in Rutherfordton where Chapman was the only Black employee.
She claims the father knew of his son’s use of the N-word from the start, promised “he would take care of it,” but failed to stop additional incidents.
In fact, the boy’s first slur raises questions on whether the boy learned it from his father.
“Tonya, my daddy called you a lazy ass black n----- because you don’t come to work,” the boy said in anger on July 15, 2018, after Chapman refused to allow him to decorate more cupcakes for the center’s residents, according to court documents. The boy also hit and kicked her.
A month later, the child used the word again when Chapman told him she had to go back to work after watching him do tricks on his bike. According to the documents, the child responded: “N-----, n-----, get to work, n-----.”
When the boy’s father, identified in court documents as Steve Smith, learned what his son had said that day, he spanked the child and brought him into the center’s kitchen to apologize to Chapman, documents show.
The boy refused. When the father left the room, according to court documents, the son spoke up. “Tonya, you are a n-----,” he said.
Chapman quit that day.
On Dec. 3, 2018, after getting the go-ahead to sue from the Equal Employment Opportunity Commission, she filed her complaint against Oakland Living Center, Steve Smith, and Smith’s parents, Oakland’s owners Michael and Arlene Smith.
Chapman, representing herself in the case, claims that the defendants subjected her to a racially hostile work environment, which forced her to quit her job, known in legal parlance as “constructive discharge.”
Hirsch, who specializes in employment discrimination, says workplace harassment cases hinge on a number of factors: whether the treatment in question rises to the level of being “severe and pervasive;” whether the employee’s bosses knew or should have known about it; and whether they took steps “reasonably likely” to stop it.
That the boy was only 6 and used the language he did is “eye-popping,” Hirsch said, adding that it is also relevant in deciding whether legitimate racial harassment occurred.
Nonetheless, Chief U.S. District Judge Martin Reidinger of Asheville threw out Chapman’s claims in November 2020, ruling in part that the boy’s use of the racial epithets could not be assigned to Oakland Living, that Chapman failed to report the July incident to her superiors, and that she quit her job before giving her employers time to address the problem.
A month ago, the Fourth Circuit Court of Appeals in Richmond, Va., which hears cases from the Carolinas, overruled Reidinger and sent the case back to his Asheville courtroom for additional consideration.
The three-judge panel, which included James Wynn of North Carolina, unanimously found that Reidinger had misapplied the law in several instances and had also erred by not considering other instances of possible racial harassment Chapman claimed to have experienced when she worked at Oakland from 2004-2015. Whether Chapman adequately reported the incidents to her superiors should be determined by a jury, not by Reidinger, the panel said.
The relevance of the boy’s age in assessing the damage inflicted by his words was debated by all sides.
In the company’s own appellate filing, Oakland Living argued that the boy’s three uses of the N-word failed to establish a racially hostile workplace or justify Chapman’s claim of constructive discharge because the slurs were “uttered by a young child.”
The appeals court judges, on the other hand, ruled that the boy’s age was immaterial.
“It matters not if the boy was too young to understand the force of his words or if he lacked intent to harm Chapman,” the judges wrote. Rather, the issue was whether his use of the slurs had “the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.”
That the child was a member of the owners’ family, coupled with the fact that he attributed his first racist remark to his father (“My daddy says ...”) can reasonably be seen as “amplifying the severity of the boy’s comment to Chapman,” the panel ruled.
“Simply put, a reasonable person in Chapman’s position could perceive a tremendous difference between an insult from (say) a customer’s six-year-old child and the powerful statement from a supervisor’s son ...”
The panel also cited Reidinger for using an obsolete standard to rule on Chapman’s constructive-discharge claim — that Chapman had failed to prove her bosses had deliberately created a hostile work place to force her to quit. The proper criterion, the appellate judges said, is the level of intolerability of Chapman’s situation.
Whether all or part of Chapman’s complaint now goes to trial remains to be seen. With the case back in North Carolina, the Oakland center wasted little time in again calling for Chapman’s discharge claim to be thrown out.
In a Sept. 27 filing, defense attorney Jonathan Yarbrough of Asheville argued that Chapman has failed to prove that her working conditions were so intolerable that she had to quit. He also claimed that “many of her allegations” regarding other instances of alleged racial harassment by the center are “outright fabrications.”
Compared to the virulently hostile working conditions found in other Fourth Circuit workplace harassment cases cited in Yarbrough’s brief, “racial epithets stated by a six-year-old child cannot credibly be construed as objectionably intolerable, such that Ms. Chapman had no reasonable alternative but to resign,” the attorney wrote.
Besides, he said, judges have “routinely” found that “sporadic incidents of otherwise objectionable behavior by children (have been) insufficiently severe or pervasive to create an objectively hostile work environment, much less give rise to a constructive-discharge claim.”
Reidinger and Chapman have legal history. He was the judge of record when Chapman filed a racial discrimination lawsuit in 2018 over the alleged treatment she received at a Little Caesars pizzeria in Forest City, which the judge threw out.
Chapman also sued both the U.S. Postal Service and the U.S. Attorney’s Office in 2017 over its handling of a registered letter she had paid for. Five weeks after it was filed, Reidinger threw the suit out — granting sovereign immunity to the post office and dismissing Chapman’s claims against the prosecutor’s office as “frivolous.”
Chapman could not be reached for comment.
