Erin K. Corcoran, Esq., Campbell Durrant, P.C. | December 2022
A recent decision by the Fourth Circuit reminds employers that they can be held liable for a hostile work environment created by third parties – even children. In Chapman v. Oakland Living Center, Inc., 48 F.4th 222 (4th Cir. 2022), an employee brought a hostile work environment suit against her employer claiming she was forced to resign after the owner’s 6-year-old grandson repeatedly called her the n-word at work. The complaint alleged that the 6-year-old stated to the employee, “[m]y daddy called you a lazy ass black n-word, because you didn’t come to work.” On another occasion, the 6-year-old allegedly called the employee the n-word and told her to “get to work.” The employee claimed she felt compelled to resign after the child called her the n-word on a third occasion.
To establish a hostile work environment, a plaintiff must show that there is: 1) unwelcome conduct; 2) based on the plaintiff’s protected characteristic; 3) which is sufficiently severe or pervasive to alter the plaintiff’s conditions of employment and to create an abusive work environment; and 4) which is imputable to the employer. The employer argued that the 6-year-old’s behavior was not sufficiently severe or pervasive to create a hostile work environment because the n-word was “uttered by a young child.” However, the Fourth Circuit disagreed, finding it significant that the child was the grandson of the owner and the son of a supervisor “being groomed to take over the family business.” It stated that a reasonable person in the employee’s position could “fear that the child had his relatives’ ear and could make life difficult for her.” Additionally, the court found it important that on one occasion the child attributed the use of the slur to his father, who was the employee’s supervisor, noting that a reasonable person could perceive a difference between an insult from a six-year-old customer and a statement from a supervisor’s son. The court further held that it did not matter whether the child was too young to understand the meaning of his words because harassment is actionable under Title VII if it has the effect of creating a hostile work environment.
Additionally, the court rejected the employer’s argument that the 6-year-old’s comments could not be imputed to the employer, stating that an employer can be liable for a third party creating a hostile work environment “if the employer knew or should have known of the harassment and failed to take prompt remedial action reasonably calculated to end the harassment.” The court held that a reasonable jury could find the employer had both actual and constructive knowledge of the child’s harassment because the employee reported the harassment to a superior, and the employer did not have a procedure in place for victims to bring complaints.
This case serves as a reminder that employers may be held liable under Title VII for workplace harassment by third parties, even if they are children. For municipal employers, this principle may apply in relation to harassment by vendors, elected officials, members of the public, or any other outsider in the workplace. The attorneys at Campbell Durrant are available to assist employers with ensuring the proper policies and procedures are in place to avoid liability for third-party harassment.