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No, Amy Coney Barrett Didn’t Rule That Using the N-Word in the Workplace Is Fine


Much is being made in the media world about Supreme Court nominee Amy Coney Barretts Seventh Circuit ruling in a case involving the workplace use of the n-word. “US Supreme Court Nominee Ruled Using N-Word Doesn’t Make Workplace Hostile, Abusive. You Can’t Make This Up,” and “Let the Record Show: Amy Coney Barrett Draws Scrutiny for Ruling Saying ‘N-Word’ Doesn’t Prove a Workplace Is Hostile,” say the headlines.

But is it really true? Do we really have a federal judge and Supreme Court nominee who has gone on record as saying that the n-word is NBD?

In a word, no.

Whatever Judge Barrett may personally think about the n-word, her Seventh Circuit ruling in Smith v. Illinois Department of Transportation makes no suggestion whatever that she believes use of the n-word is appropriate in the workplace or anywhere else. The ruling related to one employee’s case specifically, and not to the n-word generally.

The facts of the case.

Terry Smith, a Black man, had been a probationary employee of the Illinois Department of Transportation (“the Department”) as an Emergency Traffic Patrol Minuteman; his job was to perform various traffic and roadway duties. In order to become certified, Smith needed to have completed three stages of training over six months. It didn’t go well.

Evidence introduced at trial showed that Smith had been a pretty lousy driver who regularly flouted safety precautions. The Department recounted that while driving with his supervisor, Smith almost hit concrete pillars between lanes, once drove away from a gas pump with the nozzle still stuck in his truck, and nearly hit a police car. He also ignored safety instructions and almost pinned another supervisor between two cars. Smith received multiple negative reviews, and was written up for posing major safety risks.

Smith, though, had a dramatically different take on his employment relationship with the Department. According to Smith, any deficiencies in his performance were outweighed by the Department’s mistreatment of him. During his time at work, Smith filed an internal complaint that one supervisor had used abusive language toward him, and that another had threatened to fire him for being confrontational. He also told his union representative that he was being subjected to a hostile workplace environment, and that he was discriminated against because he was Black. Several times, Smith complained that he had been denied the proper pay, and that he had been the victim of discrimination based on being scheduled for different hours than other Department workers.

Eventually, the Department fired Smith, who then sued under Title VII of the Civil Rights Act, alleging hostile work environment, and retaliatory termination based on his having raised racial discrimination.

At the district court level, Smith lost at the summary judgment phase – which means that the court ruled after Smith’s portion of the case that he had not introduced enough evidence to for any reasonable jury to decide in his favor. Smith had attempted to introduce expert testimony, as well as affidavits from coworkers that helped his case. Some of that evidence was excluded from trial on the basis that it did not meet legal standards of admissibility.

Specifically relating to the topic of racial epithets, Smith tried to introduce an affidavit from one coworker that another coworker used the n-word “frequently.” Problematically, though, that affidavit, “did not specify whether [the coworker] heard these slurs himself, nor did [it] offer any detail about the contexts in which they were uttered.” The affidavit, therefore, was deemed inadmissible, because without that important contextual information, “the court could not evaluate whether [the coworker] was describing events of which he had personal knowledge or simply relaying inadmissible hearsay.”

According to the court record, Smith himself even conceded that this particular affidavit was only partially true, and, “lacked a proper evidentiary foundation.” The district court ruled against admitting that affidavit, and that ruling was one of several that Smith ultimately appealed to the Seventh Circuit.

Now let’s turn to what happened when the case came before Judge Barrett.

Judge Barrett, along with Judges Joel Flaum and Daniel Manion (both Ronald Reagan appointees), heard Smith’s appeal. As appellate judges, it was not their job to find or evaluate facts, but rather, but to review the lower court’s rulings on law. If the lower court abused its discretion, then that might be basis for a reversal.

What the panel of the Seventh Circuit found.

1. The district court had been within its right to decline consideration of certain evidence, including that very vague affidavit.

2. There was so much evidence showing that Smith was fired for bad performance that it would be impossible for a jury to conclude that he’d actually been fired as retaliation for raising racial discrimination in the workplace. On this issue, Judge Barrett pointed out that Smith never even disputed the Department’s “long list of grievances against him.” She wrote, “But a smattering of decent reviews doesn’t overcome the overwhelming number of documented  problems—including  serious safety issues—that the Department had with Smith’s performance.”

3. Smith never proved that he had been the victim of race-based harassment in the workplace. At trial, Smith raised evidence that coworkers had used profanity around him – but that profanity had not included racial epithets, nor had it been used more around him. As Judge Barrett pointed out, “Smith himself acknowledged that [his coworker] was ‘equal opportunity’  when  it  came  to  dishing  out” profanity. Barrett explained that “Because Smith introduced no evidence that his supervisors swore at him because he was black, the profanity that he describes does not establish a hostile work environment under Title VII.”

So where did all this controversy about Barrett’s view of the n-word come from?

During Smith’s trial in district court, he described one incident in which the n-word was used. Lloyd Colbert, one of Smith’s supervisors – who is also Black – called Smith a “stupid ass ni[],” after learning that Smith had filed a complaint with the Equal Employment Opportunity Office (EEOC).

In her opinion, Judge Barrett described that comment as one that “plainly constitutes race-based harassment.” She also noted, quoting from another case, that, “[W]hile there is no ‘magic number of slurs’ that indicates a hostile work environment, an ‘unambiguously racial epithet falls on the more severe end of the spectrum.’”

Colbert’s alleged utterance of the n-word occurred on January 16, 2014, which was 13 days after the Department “sent Smith a ‘Statement of Charges,’ which sought to fire him on the ground of his unsatisfactory work performance.” Smith was fired on January 30, 2014. In short, the incident happened before Smith was fired but after he filed an EEOC complaint.

Much of the criticism of Barrett centers on one line of the opinion: “The n-word is an egregious racial epithet. That said, Smith can’t win simply by proving that the word was uttered. He must also demonstrate that Colbert’s use of this word altered the conditions of his employment and created a hostile or abusive working environment.”

Why didn’t Smith win?

As Judge Barrett pointed out, “Smith can’t win simply by proving that the word was uttered.” Smith would also have needed to show – both subjectively and objectively – that Colbert’s use of the n-word created a hostile or abusive working environment. Both a reasonable person and Smith himself would need to have found Colbert’s statement abusive in order to sustain a Title VII claim.

If you were to read the headlines, you might assume that Judge Barrett ruled that the use of the n-word in the workplace is not objectively abusive. In fact, though, what she said was: “We need not address the objective prong of the analysis, because Smith falters on the subjective prong.”

Despite hyperbolic headlines indicating otherwise, Judge Barrett never ruled at all on the objective hostility of the n-word.

The reality is that Smith simply never introduced any evidence that Colbert’s use of the n-word changed his personal experience in the workplace. As Judge Barrett pointed out, “To be sure, Smith testified that his time at the Department caused him psychological distress. But that was for reasons that predated his run-in with Colbert and had nothing to do with his race.”

“And while things certainly could have gotten worse for Smith after the racially charged confrontation with Colbert, he offers no evidence that they did,” she continued.

“Smith,” wrote Barrett, “did not even try” to show that “Colbert’s slur caused him either additional or different distress,” and, “Without evidence that Colbert’s outburst  changed Smith’s subjective experience [… ] a reasonable jury could not resolve the hostile work environment claim in Smith’s favor.”

A ruling that a Title VII plaintiff failed to present any evidence supporting his claim is a far cry from a ruling that says racial epithets are not abusive or cannot constitute a hostile work environment. No claimant, in any context, should win any lawsuit based on unsupported allegations, no matter how egregious allegations might be if proven. A more appropriate version of the stories out there might be, “One Time, Amy Barrett and Two Other Federal Judges Upheld a Ruling in Which a Plaintiff Lost His Incredibly Weak Claim for Hostile Work Environment Because the Trial Court Didn’t Make Any Legal Errors.” That would be a lot less click-friendly, but a lot more accurate.

[image via Demetrius Freeman/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos