On Feb. 20, 2019, the Seventh Circuit Court of Appeals provided additional clarity about how “severe” and “pervasive” a supervisor’s conduct must be to constitute a hostile work environment under Title VII. In Gates v. Board of Eduction of the City of Chicago, Fred Gates, an African-American building engineer, testified to three offensive interactions with his direct supervisor within a two-year period: (a) a “joke” in which the supervisor called Gates the n-word; (b) an instance when the supervisor threatened to write up Gates’ “black ass”; and (c) the supervisor’s comment referencing “you people” and again using the n-word. Gates asserted that these interactions constituted a hostile work environment, prohibited under Title VII. In granting the employer’s summary judgment motion, the district court noted that Gates “faced a high bar, as the workplace that is actionable is one that is ‘hellish.'” Under this standard, the lower court found that the supervisor’s comments were not severe or pervasive enough to establish a hostile work environment.  

The Seventh Circuit reversed, rejecting (as it had previously) the “hellish” standard for a hostile environment. The Appellate Court stated that “plaintiffs’ evidence need not show a descent into the Inferno.” The court then determined that, as a matter of law, a jury could find that the supervisory conduct alleged in Gates’ testimony is sufficiently severe or pervasive to constitute a hostile work environment.

Take Away For Employers. Gates now means that as few as three allegedly offensive (and extreme) remarks made by a supervisor directly to a subordinate within a two-year period would suffice to establish a hostile environment claim that could survive summary judgment. While zero tolerance of slurs always has been a best practice, employers should recognize that: (1) Gates shows the margin for error is decreasing and the potential for exposure is increasing and (2) recurring training of supervisors to eliminate any such workplace language is critical.